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On November 6, 1998, the Court issued an Order granting the motion of the Department of Public Safety and Corrections and Wackenhut Corrections Corporation ("Wackenhut") to transfer juveniles to the Jena Juvenile Justice Center ("Jena"). The Court approved the opening of Jena, in light of the Jena Interim Agreement, which is attached as Exhibit A. Pursuant to ¶ 1 of that agreement, the United States hereby submits reports from four experts concerning conditions of confinement at Jena. Based on those reports, the United States has grave concerns about the safety of the juveniles confined at Jena. As will be discussed in greater detail below, we will immediately attempt to reach a consensual resolution with the State and Wackenhut to address the serious deficiencies that we found at Jena.⁽¹⁾ Failing that, we will need to seek judicial assistance to address the conditions at Jena.

BACKGROUND

In the summer of 1998, before the Court would permit the State to transfer juveniles to the newly-built Jena, the Court requested that the United States, amicus in Williams, evaluate the proposed plans for the opening of the facility. The Court was concerned about the opening of a new secure juvenile correctional facility and stated that Jena was "not opening unless we get everything on board. We're not going to have another Tallulah at Jena." Transcript of August 10, 1998 Status Conference at 19. The United States evaluated the proposed plans to open Jena; expressed several concerns with the plans; and, together with Williams plaintiffs, negotiated a non-enforceableagreement with the State and Wackenhut, which provided for specific interim measures to govern Jena's operation andcontribute to the safety of the juveniles to be confined there. This agreement, called the Jena Interim Agreement, also provided that after Jena was up and running, the United States and its experts would evaluate conditions of confinement at Jena and file reports with the Court. See Exhibit A at 3.⁽²⁾

Jena opened in December 1998. Since then, as required by the agreement, the State and Wackenhut provided us with periodic updates concerning conditions at the facility. We were aware, for instance, that Jena experienced some serious problems shortly after they opened. In fact, we wrote counsel for the State and Wackenhut to express our concerns about conditions of confinement at Jena at that time and to state the areas in which the State and Wackenhut were then violating the Jena Interim Agreement. See Exhibit B.

We were also aware that the State had stepped in on May 31, 1999 to assist Jena with training and bring order to the facility. State and Wackenhut reports indicated that when the State left Jena in mid-September 1999, order had been restored to the facility. However, during this same year, the Court Expert, John Whitley, filed several disturbing reports with the Court concerning conditions at Jena. Essentially, Mr. Whitley's reports documented problems at the facility right from the start -- some security problems were improved during the State's presence at Jena, but even these have worsened since the State left in September 1999. Some problems have never been resolved. Indeed, in his most recent report, Mr. Whitley stated: "My impression of the Jena Juvenile Justice Center, if no major changes are made, is that it is a disaster waiting to happen." December 13, 1999 Whitley Report at 13.

In late November 1999, we learned about the use of chemical agents at Jena over the Thanksgiving weekend. Based on the information we received, we believed that at least one use of chemical agent appeared to be in violation of the Jena Interim Agreement. Reports of these incidents, combined with the December Whitley reports, demonstrated that it was time to evaluate conditions of confinement under the agreement.

We toured Jena on January 3-7 and January 19-21 with four experts. At then end of each tour, our experts provided exit interviews to counsel for Wackenhut and the State, as well as to Jena staff, to give Jena the benefit of their initial thoughts and an opportunity to begin to take corrective action immediately. Attached are the reports of Dr. Nancy Ray, an expert in protection from harm and prevention of abuse (Exhibit C); Dr. Kathleen Quinn, a child and adolescent psychiatrist who evaluated Jena's mental health care (Exhibit D); Dr. Michael Cohen, a pediatrician who evaluated the medical and dental care at Jena (Exhibit E); and Paul DeMuro, an expert in conditions of confinement in juvenile correctional facilities (Exhibit F).

DISCUSSION

Jena fails to provide reasonable safety, improperly uses chemical restraints, and provides inadequate mental health, medical, and dental care for the approximately 276 adolescent boys confined there at any one time. As detailed below and in the attached expert reports, Jena has not been able to overcome the formidable obstacles posed by its remote location, high staff turnover, inadequately trained staff, and the issues presented by the large numbers of troubled youth confined in this institution. The State and Wackenhut have failed to comply with a number of provisions in the Jena Interim Agreement and have subjected the juveniles to unconstitutional conditions of confinement.

I. Jena Fails to Provide Juveniles with Reasonable Safety

Juveniles confined to Jena have rights under the Due Process clause of the Fourteenth Amendment, including the right to reasonable care, the right to reasonably safe conditions of confinement, the right to adequate clothing, and the right to be free from cruel and unusual punishment. See, e.g., Farmer v. Brennan, 511 U.S. 825, 833-34 (1994); Hudson v. McMillan, 503 U.S. 1, 5-6 (1992); Hellig v. McKinney, 509 U.S. 25 (1993); City of Canton v. Harris, 489 U.S. 378 (1989); Youngberg v. Romeo, 457 U.S. 307, 314-16 (1982); Bell v. Wolfish, 441 U.S. 520, 535-36, 546-547 (1979); Alberti v. Klevenhagen, 790 F.2d 1220, 1224-25 (5^th Cir. 1986)("violence and sexual assault among inmates may rise to a level rendering conditions cruel and unusual").Juveniles' rights are violated where staff use excessive force and inappropriately isolate juveniles for excessive periods of time. Milonas v. Williams, 691 F.2d 931, 942 (10^th Cir. 1982); H.C. v. Ogletree, 786 F.2d 1080, 1089 (11^th Cir. 1986). Conditions at Jena are unconstitutional as well as violative of the Jena Interim Agreement.

A. Juveniles suffer frequent injuries.

Youth at Jena are not adequately protected from harm. Dr. Nancy Ray, the United States' expert on protection from harm and abuse investigations, found an unacceptably high rate of traumatic injuries⁽³⁾ to youth at Jena, almost all of which were attributed to officers' use of force or fights among youth. Dr. Ray performed an analysis of the injuries suffered by the youth at Jena for a 54-day period, from November 28, 1999 (the day after the use of chemical agents, so that the numerous youth who were harmed during those incidents did not distort her data) until January 20, 2000 (her final day of touring Jena). In that 54-day period:

There were 104 reported traumatic injuries to youth, or two traumatic injuries per day;

At least one-fourth of the youth at Jena had been traumatically injured at least once during this brief period;

There were 66 reported orthopedic injuries to youth at Jena, and in almost all of these cases, youth were

x-rayed for suspected fractures or serious sprains or strains to various body parts including hands, wrists, feet, ankles, backs, spines, jaws, shoulders, noses, ribs, knees, and hips;

Twenty-five youth were sent for assessments, usually

x-rays, or other treatment for hand injuries, reflective of the number of physical fights at Jena;

There were 40 non-orthopedic traumatic injuries, including lacerations requiring sutures, youth having teeth knocked out, and busted lips;

There were five reports of youth alleging sexual assaults, only two of which had been formally investigated; and

Eight youth either harmed or tried to kill themselves.

Exhibit C at 9-15.

Although Jena administrators reported to Dr. Ray that there was less use of force by security officers now than in Jena's early days, Dr. Ray's analysis of the facility's use of force logs indicated that the incidence of documented use of force has been increasing since November 1999. Exhibit C at 17. Dr. Ray concludes that "the frequency and seriousness of these incidents [of use of force], coupled with the high rate of serious traumatic injuries to youth at the institution, provide hard empirical evidence that the Jena Center is a dangerous place to be." Exhibit C at 18.

B. Juveniles are the victims of staff abuse.

Most of the youth whom Dr. Ray interviewed reported at least one incident where they had been hit or harmed by the physical intervention of officers. Exhibit C at 3. Dr. Ray found that the claims of youth that officers routinely use excessive force and sometimes abuse, mistreat, and humiliate them were well-supported by documented evidence. Exhibit C at 9. In many instances, officers resort too quickly to physical interventions and that some officers, including supervisory captains and lieutenants, issue arbitrary and crude commands to youth with the apparent intention to provoke the youth to a violent response. Ibid.

Dr. Ray found that there was "substantial consistency" in the nature of youths' allegations of staff abuse. In repeated reports, youth complained that officers: 1) resorted to force too quickly in addressing minor acts of non-compliance; 2) were overly-aggressive during searches of the belongings of youth; and 3) sometimes taunted youth for little reason and provoked their violent reactions.⁽⁴⁾ Exhibit C at 19. "There were also remarkable similarities in the alleged manner in which security officers forced compliance by tripping youth, twisting their arms, legs, or ankles, slamming them into cell walls or doors, or taking them violently to the ground." Ibid. And, it appears, only a handful of officers account for most of the allegations of staff abuse. For the last quarter of 1999, 12 officers account for 82% of the reports of staff abuse. Exhibit C at 20.

C. Jena fails to investigate abuse allegations adequately.

Dr. Ray found overwhelming evidence that DPS&C's Project Zero Tolerance abuse investigation process was so broken that it offered youth few, if any, of the protections it was intended to afford. "[I]n some cases, the shell of the program left at the institution served as little more than a "cover" for officers' ongoing use of excessive force and abuse of youth." Exhibit C at 9. Problems included serious barriers to youth in reporting allegations of abuse, a pattern of staff discarding even those complaints that were filed, and critical flaws in the investigation of the complaints that were actually investigated by the facility. Exhibit C at 23. There was also evidence of Jena's failure to take reasonable steps to protect youth by placing officers targeted in credible complaints on administrative leave, in violation of the Jena Interim Agreement Part II at ¶ 3. Ibid.

Barriers to youths reporting allegations of abuse included broken PZT Hotline phones and the posting of the wrong Hotline phone number above the phones. A December 6, 1999 note in the Medical Shift Log, apparently entered at the request of Jena's PZT investigator, is clearly directed toward discouraging and curtailing youth reports of abuse. The log states, "Nurses - if any offender does not allege abuse initially on body sheet or interview, he cannot come back later and attempt to allege abuse per Ms. H." Exhibit C at 25. Juvenile JP⁽⁵⁾ received a note from the Jena PZT investigators, stating that JP would be required to pay for his own as well as any officers' physical exams if he filed another false abuse allegation. "Although such a provision would likely have a chilling effect on abuse reporting at any juvenile correctional facility where money is scarce, it was a particularly adverse warning at the Jena Juvenile Justice Center where over the past year only 6% of all allegations [of staff on juvenile abuse] are substantiated." Exhibit C at 26.⁽⁶⁾ JP did not file any more allegations. Ibid.

Dr. Ray found evidence that "hundreds" of incidents of suspected or alleged staff-on-youth abuse at Jena over the past year were never investigated by the PZT investigator. "Many of these un-recorded and un-investigated allegations were more serious than the filed cases." Exhibit C at 29. Examples of allegations that were never investigated include:

A mother called the PZT Hotline stating that on "5/22, at 6 pm, a white female guard forced AG (her son) to remove [his] shirt and slither like a snake a long distance."

A youth reported, and a Captain confirmed the report, that a sergeant let two youth fight without intervening, stating that they can "fight, shoot dice, do whatever they want..."

A counselor filed a complaint that she witnessed an officer falsely charge and ticket a youth, stating to the youth, "You try to beat that Mother Fucker."

A youth wrote an administrative procedure request (ARP), stating that he witnessed the unnecessary use of force against another youth by three officers, stating that the youth was placed in physical restraint by the officers and was being compliant and a sergeant "was constantly chopping the offender in the neck while the rest of the employees were on top of him with there [sic] knees on his back."

Jena received a fax from the PZT Hotline that youth BA had called to report that he had been grabbed by an officer and slammed to the ground. Jena's psychologist substantiated the youth's report.

Nine youth wrote a grievance "reporting Sgt. [JB] for eating off our trays ever sigal dining hall, one time (yesterbay) sgt [JB] took two trays...he taks pepos snaks and saying we have no more but I saw him...(and he siad "Sgts. come first.") He brigs his own food why can't he eat it and leave our food alone." The grievance was rejected because the youth did not start their statement with the phrase, "this is a request for administrative relief."

Richard Rogers, the District Manager of the Office of Youth Development, wrote a memo to the Warden, requesting an investigation of two reports of allegations of excessive force against a youth RD.

Exhibit C at 25-29.

Even when formal abuse investigations were undertaken, they usually did not reflect reasonable efforts to determine exactly what really happened. Many basic investigatory standards were not followed. "The most critical problem with the investigations ... however, were related to the PZT Investigator's final conclusions. Time and again, her conclusions suggested bias against the accounts of youth and in favor of security officers' testimony," even when officers' accounts were vague and youth accounts were specific and even when Jena staff supported the youths' accounts. Exhibit C at 30. For example, the investigator found evidence that youth DO was invasively strip searched, with staff requiring DO to strip, lean over, spread his buttocks, squat naked for at least two minutes, and cough in the presence of female officers. Following that, staff told him to pull down his pants and lift his testicles. A sergeant said, "you not keeping it real. My little nephew got bigger nuts than you do." Although no contraband was found that day, staff returned the next morning, re-strip searched DO, and found a five dollar bill in his laundry. The investigator's notes state: "It appears that "O" is being set up by Sgt S, Sgt H and Sgt J." In the margin of her notes is written "Possible." Sgts. H and J refused to cooperate with the investigation. The investigator did not substantiate the youth's allegations of inhumane treatment or that he had been set up. There is no evidence that the officers were counseled or disciplined. Exhibit C at 31.

D. Jena fails to provide juveniles with adequate basic care.

Dr. Ray found serious problems in basic custodial care at Jena, including inadequate clothing, inadequate bed sheets, denied opportunities for showering and personal hygiene, grossly inadequate recreational opportunities, and excessive placement of youth in lockdown. Exhibit C at 33. Dr. Ray found youth in Falcon A and B with no clean clothing at all, "huddled under a sheet or blanket in their racks. Some reported that this was the reason that they had not attended school." Exhibit C at 34. Dr. Ray found that the shoe shortage at Jena was "pervasive. On all dorms, many youth had no shoes." Exhibit C at 35. There were similar shortages of bed linens. "I observed the 48 youth on one open dorm struggle to retrieve their sheets from the tangled mess in the [laundry] cart. Initially, I thought that the youth were engaged in a group fight, but on closer observation I noticed that they were simply crowding the cart to make sure that they got back their sheets, before they were taken by another youth." Exhibit C at 36-37. "At least in some areas, the problems seemed to be linked to the reluctance of Wackenhut Corrections Corporation to spend adequate funds to provide for the care of the youth." Exhibit C at 33.

Dr. Ray found that youth in the cell block dorms (Falcon A and B and Eagle A and B) who did not attend school were confined to their cells all day. Exhibit C at 39. This is in violation of the Jena Interim Agreement, Part II, ¶ 2(C) and 2(E). Dr. Ray also found that Jena is removing juveniles from "programming" and putting them in isolation without documenting the reason for the removal, in violation of the Jena Interim Agreement, Part II, ¶ 2(C). Exhibit C at 39-40. Finally, although Jena officials reported that all youth attended outdoor physical education for one hour a day, three or four days a week, dormitory log books verify the youths' statements that they are often not allowed their allocated outdoor recreation time. Exhibit C at 37.

E. Jena has serious workforce problems.

In the facility's short tenure of only thirteen and a half months, it has had five wardens, and more than 600 men and women have been hired to fill its approximately 180 staff positions. Dr. Ray concluded that:

Wackenhut's inability to resolve this fundamental problem of ensuring sound and stable leadership and management, as well as a capable line staff, has also led the Corporation down the dangerous road of compromising on critical personnel recruitment and hiring safeguards and of keeping on employees with known problems in their past and in their current work performance at the Center. Overall, the personnel issues, which surfaced in my abbreviated review of these matters, were alarming. At the Jena Center, Wackenhut has not only egregiously violated many of its own corporate policies, but it has also transgressed the most basic professional standards for ensuring a safe and capable workforce.

Exhibit C at 41. In calendar year 1999, Jena employees worked 73,962 hours of overtime. Exhibit C at 43. Dr. Ray found that the frequent use of overtime had an adverse impact on care at Jena. "There were at least a dozen security staff persons, including several who were later fired for excessive force or other serious misconduct... who worked extended overtime hours... payroll period after payroll period." Exhibit C at 43. Dr. Ray found evidence that, in a number of cases, officers simply walked off their posts rather than stay for the required overtime shift. Ibid.

Turnover continues to be a very serious problem. In the ten weeks during the period November 1, 1999 through January 14, 2000, 55 security officers, including one major, one captain and two lieutenants, quit their job or were terminated -- 44% of the institution's security workforce. Exhibit C at 44. Only a little more than one third of the security workforce has a six-month tenure at Jena. Ibid. "The result is a security staff that is not only overworked, but also inexperienced." Ibid. And the high turnover in the leadership of the facility, "explained why so few things actually ran in an orderly fashion at Jena." Exhibit C at 45.

Most disturbing is the fact that Jena has taken critical short cuts in hiring practices, failing in some cases to ensure that staff hired are medically and professionally qualified and that they did not have past criminal records or employment experiences that made them unsuited for work with juveniles. Exhibit C at 45. Jena's new Human Resource Director found in a recent audit of 40 personnel files that:

32 files were missing Wackenhut's required psychological screening exam;

28 files were missing one or more required criminal background check;

23 files were missing documentation of screening for tuberculosis;

6 files were missing a pre-employment urine drug screen.

Exhibit C at 45-46. Jena's poor hiring practices have led to an unusually high termination rate of security staff. In the institution's first year, 125 employees, most of whom were security staff, were terminated for such serious misconduct as personal/sexual relationships with youth, falsification of documents, excessive use of force, bringing contraband on campus, and accepting money, goods, or favors from offenders. Exhibit C at 48.

In addition, some employees have been hired and maintained on the payroll despite identified histories of criminal arrests and convictions. For instance, Sgt. TW was hired in December 1998 and was terminated for youth abuse in July 1999, after youth BC suffered a serious injury. Another officer witnessed Sgt. W grab the youth's head and slam his face onto the concrete. Officers from Swanson had to pull Sgt. W off the youth to stop Sgt. W from repeatedly slamming BC's head to the floor. There is a report from the Jonesville Police Department in TW's personnel file stating that TW had four 1998 criminal convictions and had served time in jail for aggravated assault, disturbing the peace, and contempt of court. The PZT log lists three prior allegations of abuse filed against TW before he was terminated. Exhibit C at 48.

II. Other Juvenile Justice Issues

The United States asked Paul DeMuro, an expert on juvenile justice issues, to assess the adequacy of conditions at Jena from a juvenile justice perspective. In particular, we asked Mr. DeMuro (and our medical expert, Dr. Michael Cohen) to investigate Jena's use of chemical restraints on the night of November 27, 1999. In juvenile correctional facilities such as Jena, chemical restraints should only be used when a genuine risk of serious bodily harm to another exists and other less intrusive methods of restraint are not reasonably available. Alexander S. v. Boyd, 876 F. Supp. 773, 785-86 (D.S.C. 1995); see also Ruiz v. Johnson, 37 F. Supp.2d 855, 935-36 (S.D. Tex. 1999)(inmates' Eighth Amendment rights were violated where OC gas was used on an entire pod of 23 inmates in response to a disturbance by some).

A. Jena's use of gas on November 27, 1999 violated juveniles' constitutional rights and the Jena Interim Agreement.

On November 27, 1999, Jena staff violated the Jena Interim Agreement in five separate ways. Moreover, the United States' experts concluded that Jena staff endangered the lives of and abused the youth on Falcon C, used excessive force, and failed to investigate the incident adequately. Exhibit E at 4-9; Exhibit F at 6-7. On November 27, 1999, the State and Wackenhut violated the constitutional rights of the juveniles on Falcon C who were subjected to the unlawful use of chemical agents.

When the events of the night of November 27, 1999 began, youth on Falcon C at Jena had been without clean clothes for several days, had problems accessing showers, and had been experiencing a group punishment lockdown for two days. Exhibit F at 6. A relatively new Deputy Warden was in charge of the facility. The Deputy Warden came to the unit, delegated to lower ranking staff the authority to use gas as a last resort, and left Falcon C.⁽⁷⁾ Cf. Wackenhut Corrections Corporation February 2, 2000 Report at 6. Several supervisory staff were present on Falcon C and the youth were somewhat compliant. When the supervisory staff left, the youth began to act up. Instead of calling the supervisory staff back to the unit, Jena's investigator, who later investigated the incident and concluded that the use of gas that night was within acceptable limits, made the decision to use gas. A "triple chaser grenade", a CS gas grenade, was rolled into Falcon C. The grenade was deployed indoors in a unit housing at least 46 youth (some of whom were being compliant and already in bed) and several Jena staff. With that decision, Jena staff put the lives of at least 46 youth and some staff at risk and used excessive force.

The triple chaser grenade had been brought to Jena earlier in the year from Wackenhut's adult correctional facility, Allen. Exhibit F at 6. The manufacturer's specifications for the triple chaser state that the grenade "is designed for outdoor use in crowd control situations . . . . It should not be deployed . . . indoors due to its fire producing capability." Exhibit F at 6 and attachment to the report. Thankfully, no fire erupted on Falcon C.⁽⁸⁾

When the grenade was rolled into Falcon C, staff and juveniles fled through the unlocked door. Juveniles were made to lie face outdoors on concrete in the cold, some in only their underwear, for many hours. Exhibit E at 5. During this time, at least four juveniles were sprayed in the face with a hand-held canister of mace while they were on the ground. The youth claim that they were lying down with their hands behind their back and staff claim that the youth were trying to get up. On at least two occasions, two groups of youth were forced to go back into Falcon C - the youth claim for punishment because they were complaining about being cold and the guard who ordered them back onto the unit claims that he wanted to see if enough time had passed so that the clean-up process could begin. Exhibit F at 7. One of the youth who was on Falcon C when the triple chaser grenade was deployed, was ordered back into the unit, and was sprayed in the face while lying on the walk outside, began to violently shake immediately after being sprayed in the face. A nurse found him unresponsive to people around him and he was taken by ambulance to the emergency room. Exhibit E at 6.⁽⁹⁾ The Court Expert was not notified about this episode in a timely fashion. Exhibit F at 15-16.

The Jena investigator who had authorized the use of the triple chaser grenade found the use of chemical restraint that night to be within acceptable limits. The United States' juvenile justice expert, Paul DeMuro, found that the investigation of the use of chemical agents on the night of November 27, 1999 was "seriously flawed." Among other things: 1) the investigator failed to interview a number of key actors -- both youth and staff -- who were involved with the events of that evening; and 2) the investigator omitted some very important facts, including any mention of the individual uses of chemical agents on the walk outside of Falcon C and that some youth were ordered back into Falcon C while the gas was still noxious. Exhibit F at 6-7, 13; see also Exhibit E at 4-9 (Dr. Cohen's report describing major problems with the medical care provided to the juveniles who were subjected to chemical restraints that night).

Wackenhut takes the position that only one provision of the Jena Interim Agreement may have been violated by the use of chemical agents on the night of November 27, 1999 -- the provision relating to reporting the use of chemical agents to the Court Expert in a timely fashion. In response to our request to the State asking for the State's position on whether Jena's use of chemical agents on November 27, 1999 violated the Jena Interim Agreement, the State referred us to Wackenhut.

Wackenhut breached the Jena Interim Agreement in several ways:

1. The Deputy Warden on duty delegated his approval authority to a lesser ranking officer and was not present at the authorization and use of the gas (violating ¶ 1(A) and ¶ 1(C) of Part II of the agreement).

2. The use of the gas grenade was not permitted under any of the conditions set forth in ¶ 1(C) of Part II of the agreement. There was no impending or actual riot occurring. No juvenile was posing a direct and immediate threat of injury to staff or another juvenile. No juvenile was committing a felony, like escape. And a gas grenade was not the only means to avoid a physical confrontation that would likely result in injury to any of the juveniles or to the staff. Furthermore, there was no mass disturbance such as an attempted mass escape going on, which is a circumstance for which use of gas is permissible under ¶ 1(A) of Part II of the agreement.

3. The use of chemical spray on juveniles lying face down outside in the cold -- even if they were attempting to get up -- was not permitted under any of the conditions listed in ¶ 1(C) of Part II of the agreement.

4. Ordering youth back into contact with gas on the Falcon C unit while the gas was still noxious was a use of a chemical agent that is not permissible under any of the conditions listed in ¶ 1(C) of Part II of the agreement.

5. The Court Expert was not informed of the use as soon as practicable after the use, as required by ¶ 1(D) of Part II of the agreement.

Further, the State and Wackenhut violated the constitutional rights of the affected juveniles by using a chemical agent when no genuine risk of serious bodily harm to another existed and there were other less intrusive methods of restraint reasonably available. Alexander S., 876 F. Supp. at 785-86.

B. Jena's staff are inadequately trained.

Paul DeMuro, the United States' expert on juvenile justice issues, concluded that Jena

continues to be plagued with a variety of major problems. The events of November 27, 1999 were not an aberration. They grew out of an institution which is in trouble, an institution which has a largely untrained and stretched work force.

Exhibit F at 16. Mr. DeMuro found that Jena has major staffing problems, given its unacceptable line staff turnover rate; a lack of consistent leadership; and the insufficient juvenile justice experience of many of its key staff. Exhibit F at 8-9.

Most of the youth interviewed by Mr. DeMuro claimed to have witnessed or have been subjected to a variety of staff abuses such as overly-aggressive physical restraints, punches, take downs, and body slams. Exhibit F at 9. Mr. DeMuro found a widespread abusive summary punishment practice where staff order youth to lie face down on the ground for extended periods of time with their hands behind their back, keeping their head off the ground and their feet in the air. Ibid. Youth claimed that some staff allowed youth to fight without breaking up the fights and that some staff "recruited" and "encouraged" stronger youth to fight other youth who staff believed needed to be taught a lesson. Ibid; see also Exhibit E at 43-44 (youth told physician that "staff won't break up fights. That is how JM got his front tooth knocked out. There was a fight and no one did anything to stop it.").

C. Other juvenile justice issues

Mr. DeMuro found that Jena's grievance system "is broken" and, like Dr. Ray, Mr. DeMuro found that DPS&C's Project Zero Tolerance investigation process at Jena is dysfunctional. Exhibit F at 5. Mr. DeMuro found that the four large, 48-bed dorm settings are not safe. Exhibit F at 12; see also Exhibit D at 27 (because Jena operates at full capacity, youth cannot be transferred to other dorms without displacing other youth).

Mr. DeMuro also found that the State and Wackenhut "have had on going and serious problems complying with many of the provisions detailed in the November 6, 1998 Interim Agreement." Exhibit F at 15. Mr. DeMuro found noncompliance with provisions regarding: 1) staffing mandates; 2) the use and handling of chemical agents; 3) isolation and disciplinary hearings; 4) the PZT process; and 5) the limitations on use of mechanical restraints at the facility. Exhibit F at 15-16. Mr. DeMuro concludes that, "Youth at JJJC are not safe." Exhibit F at 16. III. Jena Fails to Provide Adequate Mental Health Care

Confined juveniles such as the juveniles at Jena have a constitutional right to adequate mental health care. Morales v. Turman, 383 F. Supp. 53, 101 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5^th Cir. 1976), rev'd, 430 U.S. 322 (1977); Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354, 1374 (D.R.I. 1972). Where facilities fail to provide adequate treatment to youth who are attempting suicides and engaging in self-mutilating behaviors, juveniles' constitutional rights are violated. Gary H. v. Hegstrom, 831 F.2d 1430, 1436-37 (9^th Cir. 1987); see also Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1186-87 (5^th Cir. 1986)(failure to provide pre-trial detainee with adequate protection from his own suicidal impulses is actionable).

Conditions at Jena endanger the juveniles with mental disabilities who are confined there. Dr. Kathy Quinn, our expert on mental health care, found that some juveniles at Jena repeatedly engage in self-mutilating behavior to seek the safety of the medical unit and escape the dangers of the Jena general population, where victims are strong-armed for food or canteen or are being sexually victimized. Both Jena's psychologist and psychiatrist described this pattern, but neither could describe Jena's approach to address the causes of the self-injurious behavior. Exhibit D at 13. For example, juvenile NR, whose file is full of allegations that others make sexual advances toward him and take his food and clothing, regularly self-mutilates. He has also twice attempted suicide while at Jena. Exhibit D at 14. Other juveniles become depressed and anxious about the conditions of their daily lives. For example, youth JM, who entered Jena with no current mental health needs, was assaulted by other youth on December 28, 1999, and sustained two black eyes and trauma to his nose and lip and lost a tooth. The other youth were trying to strong-arm JM for his piece of cake. Following this episode, JM sought mental health care, describing depression and anxiety over facing his peers. Exhibit C at 22.

Juveniles with known suicidal impulses are housed in areas with known and obvious suicide hazards. In particular, the shower heads and the window bars throughout the facility (including the window bar in the medical isolation room) create a risk for hanging. Exhibit E at 44 and photographs attached as Appendix C to that Report. Jena staff are aware of the risk presented by the window bars because youth have attempted suicide using these bars. For instance, youth CB tied a sheet around his neck and to the window bars. When he was discovered "in bad condition," a code blue was called. Exhibit D at 19. In another example, juvenile TG tied a sheet around his neck and the window bars. Less than a month later, TG tied a shoelace to his neck and the window bars and threatened to jump from the top bunk while tied. Exhibit D at 20. Jena staff also permit youth with known suicidal tendencies access to potentially lethal instruments. For example, youth NR has been found on various occasions with a belt, a sock, and an ace bandage around his neck. Exhibit D at 19-20.

When Jena does respond to self-mutilation and suicidal behaviors, "it often does so in a coercive and punitive fashion." Exhibit D at 15. There is a pattern of writing disciplinary tickets for both self-mutilation and suicide attempts, as well as charging youth for property damage or for medical care. For instance, when juvenile DC put a belt around his neck and tied it to the cell door, staff sprayed him with mace. He was written up with a disciplinary ticket. Exhibit D at 15. In another example, juvenile RH self-mutilated and was forced to lie naked on a concrete floor of a cell with blood spattered on the floor and door. Exhibit D at 16 and photographs in Appendix F to that report.

Although Jena is supposed to be a substance abuse facility, it fails to provide minimally adequate substance abuse treatment. Exhibit D at 3-7. Administrative and program staff at Jena uniformly stated that Jena does not now and never has functioned as a substance abuse treatment center. Exhibit C at 2. Jena employs only one certified substance abuse counselor, who estimates that only one-third of the youth who need substance abuse services at Jena are getting such services. Exhibit D at 4. For example, RH was sent to Jena in July 1999 to receive court-ordered substance abuse treatment. RH began substance abuse at age 11, using alcohol and marijuana daily. When he was 15, he began using cocaine, acid, opium and crystal. In the more than seven months he has been at Jena, he has only attended seven substance abuse meetings -- the last one he attended was in mid-October, 1999. Exhibit D at 6-7. Jena's sole certified substance abuse counselor admits that RH is not receiving adequate substance abuse services at Jena; Dr. Quinn concludes that the level of care that RH has received at Jena is "grossly inadequate." Exhibit D at 7.

Dr. Quinn also found that Jena fails to adequately identify and treat juveniles' mental health needs, Exhibit D at 7-13, falls below the standard of care in the use of psychotropic medications, id. at 17-18, subjects juveniles confined there to an unacceptable level of violence, id. at 21-24, and lacks adequate youth development programming. Id. at 24-25. Dr. Quinn also found that Jena's use of medical and mechanical restraints grossly deviates from acceptable professional standards. Id. at 27-32. For example, after MT cut his wrists, Jena's psychologist ordered that correctional staff constantly monitor the youth. Ignoring the mental health order and not providing staff to constantly watch MT, correctional staff instead restrained MT to the bed in his cell in four-point restraints. Exhibit D at 29; see also Exhibit E at 11 (it is contrary to juvenile justice practices for correctional staff to physically affix a youth to a fixed object in his dormitory).

IV. Jena Fails to Provide Adequate Medical and Dental Services

Confined juveniles such as the juveniles at Jena have a right to adequate medical care. Alexander S. v. Boyd, 876 F. Supp. 773, 788 (D.S.C. 1995)(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)); Morgan v. Sproat, 432 F. Supp. 1130, 1155-1156 (S.D. Miss. 1977); Morales v. Turman, 383 F. Supp. 53, 101 (E.D. Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5^th Cir. 1976), rev'd, 430 U.S. 322 (1977); Martarella v. Kelly, 359 F. Supp. 478 (S.D.N.Y. 1973).

Dr. Michael Cohen, the United States' medical expert, found that the health program at Jena substantially departs from current accepted professional standards for juvenile justice facilities and clinical practice of adolescent medicine. Exhibit E at ii. Dr. Cohen recommends that "[i]mmediate action is required to prevent ongoing harm to youth at Jena." Ibid.

Jena's physician is not trained in pediatrics or adolescent medicine. Dr. Cohen found that the physician's management of acute and chronic health problems is so substandard that immediate measures must be taken. Dr. Cohen suggests that Jena's physician be reviewed and supervised by a physician with experience in adolescent medicine. Exhibit E at 23-34.

The physician's deficient care of asthmatic youth at Jena illustrates the problem. Although the peak expiratory flow meter has been a routine part of asthma care for more than 20 years, the physician does not obtain peak flow rates when he evaluates asthmatic youth -- he does not obtain them when asthmatic youth are feeling well; he does not obtain them when youth complain of shortness of breath; he does not use them to assess the effectiveness of the treatment he prescribes. Exhibit E at 28. Furthermore, one of the most important advances in asthma care over the past 15 years has been the widespread use of inhaled steroids to control the disease. At Jena, inhaled steroids are not used at all.⁽¹⁰⁾ Instead, youth are given steroid pills. For instance, the physician at Jetson ordered a steroid inhaler for juvenile DH at intake; when DH was transferred to Jena, the physician changed the order to prescribe a daily oral steroid. Exhibit E at 30. Dr. Cohen states that "[t]his is obsolete therapy which subjects the youth to unacceptable risks of steroid complications and substantially deviates from current accepted clinical practice." Exhibit E at 29. Dr. Cohen further concludes that because inhaled steroids are more expensive than steroid pills, "[t]he physician and Wackenhut are subjecting youth to the risks of systemic steroid complications in order to avoid the cost of the current standard of care which is inhaled steroids." Exhibit E at 29.⁽¹¹⁾

The physician's care of the unusual number of youth with significant peptic ulcer disease at Jena further illustrates the problem.⁽¹²⁾ The current standard of care to manage peptic ulcer disease is to test for H. pylori, a bacterium which causes ulcers, and antibiotic treatment with three or more drugs to eradicate infection when it is present. Only one of the three youth at Jena with ulcers, SD, was tested for H. pylori infection (which was found to be present) and only SD has been given antibiotics. However, only a single antibiotic was prescribed. Dr. Cohen notes that "[i]t is not unexpected, therefore, that treatment was ineffective and his bleeding episodes have continued." Exhibit E at 31. Despite recurrent episodes of vomiting blood related to his ulcer, the physician has failed to consult an appropriate specialist for assistance in managing SD's potentially life-threatening disease. Exhibit E at 31.

Nurses at Jena fail to recognize conditions that require medical evaluation by a physician. Exhibit E at 21. For instance, juvenile DM has a known history of a bleeding disorder -- his mother called the facility to alert them to the disorder and DM has twice told the nurses about the disorder. Nurses, however, have failed to refer DM to the physician for evaluation, even when he came to the infirmary with nosebleeds. Exhibit E at 32.⁽¹³⁾ In another example, juvenile LB came to sick call with painful urination; LB was not evaluated or treated for a sexually transmitted disease and nurses did not refer him to a physician. Exhibit E at 21.

Dr. Cohen found a number of other problems with the health program at Jena. The initial health appraisal at Jena is incomplete; among other things, Jena nurses do not recognize some abnormal urine and blood test results and therefore do not refer juveniles with such abnormal results to the physician. Exhibit E at 10-13. Youth with abnormal vision intake screens are not provided timely or effective evaluations when they are transferred to Jena. Dr. Cohen found no evidence that any prescription glasses had ever been to supplied to any youth. Exhibit E at 13-14. The Jena hearing program did not follow up effectively on any of the youth admitted to Jena with abnormal hearing during the past year. Exhibit E at 15.

Although Wackenhut has a policy regarding seeking and obtaining prior immunization records, this is not done at Jena. Auditors for the American Correctional Association passed Jena on the immunization standard based on the policy, but apparently failed to observe that no immunization records were ever actually sought or obtained. Exhibit E at 16-17.

Sick call requests are controlled by security staff in the lockdown units. Youth report that some sergeants will not give out sick call slips. Exhibit E at 19-20.

Nurses perform wholly inadequate assessments after youth are subjected to chemical agents. They do not take vital signs, do no assessment of eyes or vision, do no assessment of lungs or breathing, do no assessment of skin for burns, and do no assessment of the mental status of the youth. Exhibit E at 21.

Dr. Cohen also found that Jena fails to provide adequate dental care. Among the problems, some juveniles with diagnosed cavities are not scheduled to have these cavities filled. As noted by Dr. Cohen, "[n]o parent should neglect the ongoing destruction of permanent teeth which have been found to have decay. The state must not neglect the care of the children in its custody. To be most effective, such care must be timely, as the damage to the tooth is ongoing and continuous." Exhibit E at 35-38. The dentist does not replace missing teeth; he believes that DPS&C policies prohibit him from replacing any teeth. The dentist stated that even those youth whose front teeth are knocked out in a fight, such as JM in 12/99 and CW on 1/3/00, will not get dental prostheses to replace these teeth.⁽¹⁴⁾ This is contrary to clinical practice and correctional health standards. Exhibit E at 38-39.

Finally, Dr. Cohen found that the quality assurance program that exists at Jena has failed to identify and correct significant deficiencies in the health program. The Health Care Administrator could not name a single significant improvement in care that had been initiated as a result of the QA process. Exhibit E at 42.

VI. Conclusion

Until the significant deficiencies raised by the United States in the attached expert reports are sufficiently remedied, conditions at the facility will remain unlawful and will continue to endanger the health and welfare of the juveniles confined at

Jena. We will shortly report to the Court concerning our progress negotiating remedies with the State and Wackenhut.

Respectfully submitted,

BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division

STEVEN H. ROSENBAUM
Chief
Special Litigation Section

ROBINSUE FROHBOESE
Deputy Chief
Special Litigation Section

_______________________

JUDITH C. PRESTON

IRIS GOLDSCHMIDT

Trial Attorneys

Special Litigation Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66400

Washington, D.C. 20035-6400

(202) 514-6258

L.J. HYMEL, La. Bar #7137
UNITED STATES ATTORNEY
MIDDLE DISTRICT OF LOUISIANA
777 Florida Street, Suite 208
Baton Rouge, Louisiana 70801

1. With the filing of our reports, the Jena Interim Agreement expires. Exhibit A at 2, 11.

2. The Jena Interim Agreement, which provided that the expert reports were to be filed with the Court by January 15, 1999, was modified by the agreement of the parties when it became apparent that juveniles were not going to be transferred to Jena according to the dates specified in the agreement. The parties agreed that the tours would occur at a mutually agreeable time.

3. A "traumatic injury" is a bodily injury produced by violence.

4. For example, an officer filed a report stating that two officers were taunting several youth who were just arriving at Jena. He stated that the officers were calling the youth stupid and that one officer told a youth that "if he farted and [the officer] smelled it, he would be wrote up, because he [was sentenced to] juvenile life." Exhibit C at 22.

5. In accordance with the January 4, 2000 protective order and to protect the privacy of the confined juveniles, only the initials of juveniles are provided in this pleading and in the reports. The actual names of the juveniles referenced in the reports have been provided to counsel of record.

6. There is, of course, a difference between imposing consequences on filing "false" allegations and imposing consequences on filing complaints that are not substantiated by the investigators.

7. The Deputy Warden went to Eagle D, where he sprayed the dayroom (and the several juveniles in the dayroom) with a hand-held canister of gas.

8. This is not the first time a gas grenade has been used at Jena. On December 19, 1998, Jena staff used a Federal 519 gas grenade to quell a disturbance. When we learned about this incident, we sent the State and Wackenhut a letter to express our serious concerns about the ability of the State and Wackenhut to protect juveniles at Jena from harm. Exhibit B at 2. When we toured Jena in January 2000, we saw a number of these gas grenades in Jena's armory. The Federal 519 grenade has a warning label surrounding it that states: "...for outdoor use only. May release lethal concentration indoors." Exhibit E at 4.

9. Dr. Cohen, the United States' medical expert, found that the medical care provided to this youth as well as other youth who were gassed on the night of November 27, 1999 was inadequate. Exhibit E at 8-9. For instance, the youth who was sent to the emergency room on the night of November 27, 1999 reported to sick call on November 29 complaining of blurred vision, facial burning, and a sore left eye. The physician did not evaluate him at all, but instead rotely recited in his physician note that there were no heart, lung, or abdominal problems related to the gassing. The physician provided no evaluation, no diagnosis, a nd no treatment for the youth's actual injuries and complaints. "No care was provided at all." Exhibit E at 8. A youth with asthma was also seen by the physician on November 29, complaining of the aftereffects of being gassed. "His respiratory rate was abnormal at 22 per minute." Ibid. The physician failed to obtain a measure of lung function, such as a peak flow rate, and the youth was provided no treatment for his asthma. Ibid.

10. The physician admitted that he uses inhaled steroids in his private practice. Exhibit E at 29.

11. The Wackenhut drug formulary reads:

Steroid pills ($)

Beclomethasone inhaler ($$$$)

The inhaler contains a steroid preparation. Exhibit E at 29.

12. Dr. Cohen found an unusually high rate of stress related disorders such as hypertension and ulcers in this facility, which may be related to the "extremely violent environment at Jena," which "is harmful to the health of the youth." Exhibit E at 43.

13. On July 18, 1999, DM came to the infirmary for evaluation after staff used force on him. His upper left abdomen was bruised during restraint by staff, who had not been alerted to his risk of bleeding. Dr. Cohen notes that "blunt trauma to the abdomen is very dangerous" to DM. Exhibit C at 43.

14. The dentist does provide prostheses in his private practice to replace single front teeth and when several teeth are missing in one quadrant. Exhibit E at 39.