Testimony of the New York Civil Liberties Union1 before the New York City Council Committee on Fire and Criminal Justice Services & Committee on Juvenile Justice on the treatment of adolescents in New York City Jails and the United States Department of Justice’s report on violence at Rikers Island October 8, 2014 I. Introduction The New York Civil Liberties Union (NYCLU) respectfully submits the following testimony regarding the City Council’s consideration of the treatment of adolescents (prisoners ages 16-182) in New York City Jails, and the United States Department of Justice’s (DOJ) report on violence at Rikers Island, which found a “pattern and practice of conduct that violates the constitutional rights of adolescent inmates.”3 With 50,000 members and supporters, the New York Civil Liberties Union is the foremost defender of civil liberties and civil rights in New York State. Our mission is to defend and promote the fundamental principles and values embodied in the Constitution, New York laws, and international human rights law, on behalf of all New Yorkers, including those incarcerated in jails and prisons. The NYCLU is an outspoken advocate for evidence-based corrections practices that improve public safety and respect fundamental human dignity. We are pleased to support the City Council in bringing much-needed oversight to the treatment of adolescents in New York City jails. We hope this hearing is the first step toward comprehensive reform of the myopically punitive and harmful conditions and practices that have persisted in New York City jails for far too long. On a given day, nearly 700 young people ages 16 through 18 are held in New York City jails.4 Many of these teens are pre-trial detainees unable to make bail, and all of them are automatically charged as adults (making New York one of two states with such an outdated policy). Half the adolescents at Rikers are diagnosed with mental illness, and many more lack economic resources and social supports both in and outside of jail, leading to longer stays and high recidivism rates.5 The report issued by the DOJ this summer highlighted the devastating ways in which the constitutional rights of this extremely vulnerable population are violated daily, focusing on the excessive use of physical force and punitive segregation, and indicating deficiencies in medical, mental health, and education services that warrant in-depth investigations. The report found that “while adolescents made up only about 6% of the average daily population at Rikers, they were involved in a disproportionate 21% of all incidents involving use of force and/or serious injuries.”6 We support the report’s key recommendations, which aim to shift the culture on Rikers Island from one of punishment and force to rehabilitation and treatment. This includes, but is not limited to: clarifying ‘use of force’ policies, providing practical training for staff on use of force and on interacting with adolescents, increasing accountability for improper staff conduct, and developing alternatives to segregation. In addition to ensuring that people on Rikers are protected from excessive use of force, New York City should abolish punitive segregation immediately for young people and other vulnerable populations like individuals with mental illness and those with disabilities. While we applaud the recent decision to eliminate the use of solitary confinement for 16- and 17-year-old prisoners, we expect New York City to critically examine the use and overuse of segregation for all populations on Rikers Island. Ultimately, solitary confinement should be abolished for all incarcerated people and replaced with evidence-based alternatives that have been proven to be safer, more effective, and more humane. One key rehabilitative track that has the power to improve a teenager’s development both inside and outside of jail is education; we ask that the City Council consider our recommendations below, which call for raising the education standards for youth on Rikers (or in other New York City correctional facilities). In conjunction with comprehensive reform of discipline practices, increased education programming will lead to lower recidivism rates and better outcomes for youth. II. Education Access, Recidivism, and the School-to-Prison Pipeline Youth who leave high school before graduation often enter the criminal justice system —roughly one in every 10 young male high school dropouts is in jail or juvenile detention, compared with one in 35 young male high school graduates.7 The increasingly close connection between the criminal justice system and struggling schools only adds to this problem.8 For years, the NYCLU has studied the causes and effects of the school-to-prison-pipeline — a combination of education policies that push students out of school and into the criminal justice system. Youth on Rikers, an overwhelming majority of whom are black9, are often a product of this complex system, which underscores the rehabilitative significance of providing education in jail. Many of these young men were students in New York City public schools, where their academic or special education challenges could have contributed to their removal from classrooms and from supportive programs. Many of them probably faced long-term suspensions with few academic supports. Yet, countless studies have demonstrated that education in correctional settings is crucial to reducing recidivism. A recent study found that on average, inmates who participated in correctional education programs had a staggering 43 percent lower rate of recidivism than those who did not.10 Research also shows that education in juvenile justice facilities is the most economically efficient crime prevention technique.11 The City has a fundamental responsibility, backed by the law, research, and the experiences of incarcerated youth, to focus on alternatives to incarceration and to mitigate its harmful effects by supplying as robust an education for adolescents in jail as possible. The benefits of personal academic, emotional, and psychological growth, lower recidivism rates, smoother transitions into the community, and a safer city are undeniable. In addition, the City must closely examine the other end of the pipeline, limiting the powers and responsibilities of law enforcement personnel to enforce school discipline. Keeping kids out of the system must be as much of a priority as addressing their conditions inside. III. Barriers to Education In 2000, the Second Circuit held that education services on Rikers Island were not fulfilling the constitutional mandate to provide equal education programming for youth.12 Recent changes brought about by that decision have resulted in a 50 percent increase in attendance in educational programming on Rikers, laying the groundwork for broader education access amongst the adolescent and young adult population; however, major challenges remain. a) Unequal Minimum Standards Sixteen and 17-year-olds are currently required to receive a minimum of three hours of education programming per day, or 15 hours a week (excluding lunch), at East River Academy on Rikers Island, in order to fulfill the constitutional mandate that minors receive a public education.13 Two-thirds of their instruction must include reading, mathematics and oral and written communication, with other activities including life skills education. Three hours is significantly lower than the requirement for traditional public schools, which requires that students receive a minimum of 5.5 hours of instruction a day, creating a major barrier to full and equal education access.14 This discrepancy puts students at Rikers at a disadvantage; many enter the system facing serious educational challenges, indicating that they need more, not less, instruction. Additionally, superintendents, correction officers, and prisoners alike point to cuts in educational programming and the resulting increase in idle time as a leading problem in their facilities.15 The DOJ report supports this connection, finding that “limited programming and structured activities available at [Rikers] in part contribute to the extraordinary level of inmate-on-inmate violence.16 b) Deficient Education in Punitive Segregation Young people in solitary confinement on Rikers Island face the most serious barriers to continuing their education. Youth in solitary are not allowed to attend school, and are instead given workbooks or instruction via telephone; these services can be inconsistent and rely on the students’ own motivation to complete work. Of course, research has made clear that solitary confinement increases depression and risk for self-harm,17 and is in no way conducive to self-teaching and learning.18 The NYC Department of Correction (DOC) recently announced it would end the use of solitary confinement for 16- and 17-year-olds by the end of 2014. While removing this vulnerable population from solitary confinement is not a substitute for comprehensive reforms to the practice in its entirety, the importance of taking immediate steps to protect these individuals is undeniable. We applaud DOC’s decisive action in addressing this issue and we look forward to monitoring the impact of the new policy. State law, however, guarantees a young person’s right to attend school until the age of 21 if they have not received a diploma. DOC must still establish a meaningful process for educating prisoners 18-21 years old who want to attend classes while in segregation. We echo the DOJ’s concerns about the educational services offered to youth who are in solitary on Rikers, particularly those young people with special education needs; the report found that “the educational services offered to youth in punitive segregation units may not comply with the requirements of the Individuals with Disabilities Education Act.”19 IV. Recommendations We have three primary recommendations for the City Council and DOCs to consider today with regard to increasing access to meaningful education for young prisoners in New York City facilities. a) Increase Minimum Standards for General Education With adolescent brain development continuing through age 25, it is imperative that a young person’s time at Rikers is rooted in a comprehensive and rehabilitative education at least equal to that of their peers in other public schools. We therefore recommend that the minimum standard for education programming on Rikers Island be raised from three hours to five and one-half hours for 16 through 21-year-olds who are enrolled in school (all 16- and some 17-year-olds must attend school subject to city and state compulsory attendance laws20; students older than compulsory age should be encouraged to remain enrolled and must receive adequate supports to do so). Increasing access to education has the added benefit of reducing idle time, and combined with additional recreational programming like the Adolescent Behavioral Learning Experience21 will extend prisoners’ productive time further into the day. Keeping young people engaged in meaningful educational programming during the day has the potential to reduce violence and other offenses in the jail. b) Improve Minimum Standards for Education in Punitive Segregation In order to reform the hugely deficient learning conditions of youth in solitary confinement, we recommend that the DOC create out-of-cell educational instruction groups for juveniles housed in punitive segregation housing areas; this would mirror practices for providing group therapy for prisoners in Clinical Alternatives to Punitive Segregation (CAPS) and Restricted Housing Units (RHUs), while asserting the fact that education is as necessary and rehabilitative for incarcerated youth as mental health services.22 Teachers should also be allowed to provide educational assistance in person in the housing areas, as opposed to through intermittent phone calls. While we recognize the DOC has in place a plan to eliminate solitary confinement for 16- and 17-year-olds, this problem will persist for 18 to 21-year-olds enrolled in school. We urge the City to seriously consider the needs of older students as well by addressing in-cell instruction and by eventually abolishing punitive segregation altogether. c) Improve Education Screening Process for All Students New York correctional education standards require that teachers create an education plan for each eligible youth within 10 school days of their admission into Rikers, including modified services for students with disabilities.23 For 18 to 21 year-olds, access to special education services are particularly limited, since students can only receive services if they were classified as having a disability by their school prior to arrest.24 For students whose disabilities went undetected in school, it is unclear whether and how they would receive a specialized education plan. Since most students arriving at Rikers are in need of intensive learning services, the Department should amend its regulations to include screening of all youth (ages 16-21) for disabilities in conjunction with establishing the education plan. In addition, staff should be instructed to initiate Individualized Education Plans (IEP) and special education services as needed in accordance with federal and state law. The City must fulfill its obligation to provide youth with an equal education, regardless of whether they receive classes in a general education classroom, alternative school, or in segregation, and from ages 16-21. V. Conclusion We thank the Council for providing this opportunity to share our recommendations for reforming the conditions and treatment of adolescents in city jails. As the Department of Justice’s report showed, the extreme use of force and solitary confinement at Rikers Island is at least partly attributable to the absence of robust programming for juveniles and proper training for correctional and civilian staff. These are issues with serious human costs. We must view the students at East River Academy as part of the New York City public school system, young people whose life outcomes rely in part on access to an equal, comprehensive, and individually appropriate education. We look forward to having additional conversations with the Council and the administration about reforming education services and other ways to improve health and safety in New York City jails and across the City as incarcerated people are released back into the community.  
 
Footnotes 1 This testimony was researched and co-written by Deandra Khan and LeAnn Sharpe. 2 The DOJ report defines “adolescents” as male inmates between the ages of 16 and 18 housed at Rikers; we add all prisoners age 16-18 to this category; even though young women comprise a smaller portion of the adolescent population, they experience many of the same conditions as males and warrant intensive support services. Transgender prisoners also face serious barriers to safety and rehabilitation in jail. See National Mental Health Association (2004). Mental Health Treatment for Youth in the Juvenile Justice System. 3 U.S. Department of Justice. (August 4, 2014). CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, p. 1. 4 Annual Reporting. (2013). NYC Board of Correction Minimum Standards, Section 1-02, available at 2013.http://www.nyc.gov/html/doc/downloads/pdf/ANNUAL_REPORT_FY2013_ADOLESCEN... 5 U.S. Department of Justice. (August 4, 2014). CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, p. 6. 6 Id, p. 8. 7 Sum, A., Khatiwada, I., McLaughlin, J., Palma, S. (2009). The Consequences of Dropping Out of High School: Joblessness and Jailing for High School Dropouts and the High Cost for Taxpayers: 22% Daily Jailing Rate for Young Black Men Who Drop Out of High School. 8 Indeed, the DOJ and U.S. Department of Education issued joint guidance earlier this year identifying the disproportionate impact of school discipline policies on students of color, many of whom spend more time out of school and on the streets due to the overuse of suspensions. U.S. DOE and DOJ, “School Climate and Discipline Guidance Package,” Jan, 2014. Available at http://www.ed.gov/news/press-releases/us-departments-education-and-justi.... Students who are suspended from school are more likely to be arrested, and the overrepresentation of black students and students with disabilities in the school discipline system is directly reflected in the population of young people on Rikers Island. See e.g., Justice Center, Council of State Governments & Public Policy Research Institute, “Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement,” July 2011. 9 Black students are far more likely to be suspended from school than students of other races. See, e.g., Office of Civil Rights Data Collection. (2011). http://ocrdata.ed.gov/Page?t=s&eid=474638&syk=6&pid=732 , NYCLU, “ABCD, STPP: How School Discipline Feeds the School to Prison Pipeline,” October 2013. 10 RAND Corporation. (2013). Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs That Provide Education to Incarcerated Adults. Retrieved from https://www.bja.gov/Publications/RAND_Correctional-Education-Meta-Analys... (last visited Sept. 29, 2014). 11 Id at 11. See also ACLU, ACLU Fact Sheet on the Juvenile Justice System (July 5, 1996). Available at http://www.aclu.org/crimjustice/juv/10091res19960705. 12 Handberry v. Thompson, 446 F.3d 335 (2d Cir. 2006) 13 N.Y. Comp. Codes R. & Regs. tit. 8, §118.2. 14 Id. § 175.5(a)(3) 15 Elizabeth Cate, Teach Your Children Well: Proposed Challenges to Inadequacies of Correctional Special Education for Juvenile Inmates, 34 N.Y.U. Rev. L. & Soc. Change 1, 31 (2010), See Prison Visiting Comm., Corr. Ass'n of N.Y., State of the Prisons 2002-2003: Conditions of Confinement in 14 New York State Correctional Facilities 8 (2005) http://www.correctionalassociation.org/wp-content/uploads/2012/05/State_... 16 U.S. Department of Justice. (August 4, 2014). CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, p. 9. 17 See Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J.L. & POL’Y 325, 336 (2006) (noting impulse control and self-harm are psychiatric symptoms associated with solitary confinement); Craig Haney, Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, 49 CRIME & DELINQ. 124, 131 (2003) (noting the association of suicide and self-mutilation with isolated housing); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIM. & JUST. 441, 492-493 (2006) (noting problems with impulse control, violent reactions, self-mutilation, suicide associated with prolonged isolated confinement). 18 See Nicole Flatow, Teen Jailed at Rikers for 3 Years Without Conviction or Trial, THINK PROGRESS, Nov. 25, 2013 (explaining that a teenager, Kalief Browder, spent three years in jail without charge or trial, including more than 400 days in solitary confinement). 19 20 U.S.C. §§ 1400 et seq. 20 N.Y. Educ. Law §3205. In New York City, students are required to attend school until they have completed the school year in which they turn 17 years of age. NYC Dep’t of Educ. Chancellor’s Reg. A-210 (I). 21 ABLE is a privately funded social impact bond program that provides evidence-based cognitive behavioral intervention, skill-building recreational activities, and reentry planning for youth during the day, before or after DOE coursework. See Osborne Association (2012). About the Adolescent Behavioral Learning Experience (ABLE). Available at http://www.osborneny.org/programs.cfm?programID=43 22 City of New York Department of Correction (2014). Clinical Alternatives to Incarceration / Restricted Housing Units (RHU). Available at http://www.nyc.gov/html/doc/html/press/caps-rhu.shtml 23 N.Y. Comp. Codes R. & Regs. tit. 8, § 118.3. 24 Elizabeth Cate, Teach Your Children Well: Proposed Challenges to Inadequacies of Correctional Special Education for Juvenile Inmates, 34 N.Y.U. Rev. L. & Soc. Change 1, 17-18 (2010). “As young students' disabilities are often undetected--especially in low-income school districts, from which incarcerated youth are predominantly drawn--this provision has the potential to deny special education to a large number of incarcerated youth. The prevalence of unidentified disabilities makes it likely that a youth with disabilities who is over the age of eighteen will not receive special education services if she enters the criminal justice system. Given the strong relationship between disabilities and criminal activity, it follows that a significant number of youth with disabilities are being denied the protections of IDEA.”

Stay informed

The New York Civil Liberties Union is a state affiliate of the ACLU

Learn more about ACLU National