Youth correctional facilities in Colorado are still using a form of full-body restraint on juveniles a year after the state eliminated a similar practice that has been deemed torture by other states.
The revelation of this new method is highlighted in a report released Wednesday by Colorado’s Child Protection Ombudsman, which said the state’s revised restraint tactics provide an extreme example of a juvenile detention system that is “opaque, inconsistent and inaccessible” with its policies.
Stephanie Villafuerte, the state’s child protection ombudsman, called for the department to increase transparency, public participation and state oversight.
The system is working in reverse, Villafuerte told The Denver Post: Policies are enacted without outside input, and then the public finds out about them once they’re in effect.
“Kids should not be getting psychologically or physically harmed until we realize policies are flawed,” she said. “We ought to be having these conversations up front.”
In its response to the ombudsman’s findings, the Colorado Department of Human Services, which operates the Department of Youth Services, agreed to be more transparent in its decision-making going forward.
But Villafuerte said the state hasn’t gone far enough, questioning why the department responsible for rehabilitating youths doesn’t fall under the state rule-making process.
Wednesday’s report comes as Colorado’s juvenile detention facilities have faced scrutiny for their practices in recent years from lawmakers and child welfare advocates.
A February 2017 report, titled “Bound and Broken,” found that the state’s juvenile correctional facilities were a “chaotic and violent environment” where youths and staff members were frequently injured in fights and assaults.
The report found that youths were placed in solitary confinement more than 2,200 times in a year-long span, while the staff frequently used physical restraints such as the Wrap, which causes numbing, pain and psychological damage.
Few other states use the technique. In 2014, the Arkansas juvenile ombudsman investigated the use of the Wrap in that state, calling the device “torture.” Two weeks later, Arkansas banned the device.
Staff and the youths in the facilities were like “rival gangs,” the report said. Violence was the norm.
This year, violent incidents have remained prevalent, including at least five at the Lookout Mountain Youth Services Center in Golden. They included multiple riots, which left more than a dozen people injured, and escapes by sex offenders and violent juveniles.
“Excluded, disrespected and unheard”
After the 2017 report, the Department of Youth Services vowed to ban the controversial Wrap practice, which involved putting youths in handcuffs, ankle straps and helmets complete with a “spit mask.”
But months after the technique was supposed to be eliminated, the Child Protection Ombudsman’s Office learned that staff had introduced a slightly modified restraint called the “side-hold” that mimicked the straitjacket effect. Instead of the mechanical Wrap restraint, youth are handcuffed and their ankles are bound together while staff members physically hold them down.
This wasn’t rogue staff implementing their own rules. It was new departmental policy. And few on the outside knew it was happening, the report said.
The side-hold policy was developed internally and implemented with “no opportunity for stakeholders outside of DYS to participate in the development of the policy, nor was there any notice provided to juvenile advocates, lawmakers or the public when it took effect,” the ombudsman wrote.
Anders Jacobson, director of the state’s Division of Youth Services, confirmed Wednesday that the side-hold is still being used, but called it “vastly different” than the Wrap.
“In its simplest form, for a youth in an emergent state, we have the ability to physically manage them for their protection and the protection of others,” Jacobson said.
The report found that stakeholders were surprised, frustrated and confused with the revision of other Department of Youth Services policies, including pat-downs, strip searches and access to juvenile records.
“The exclusion of outside eyes and voices creates confusion and suspicion and results in policies that may not be adequate to protect youth and staff safety,” the report stated.
In addition to outside stakeholders, the facilities’ own staff members are also feeling “excluded, disrespected and unheard,” the report found, leading to low morale.
The contentious relationship between staff and youths has bred a culture of violence inside the facilities, said Elise Logemann, juvenile justice policy counsel for the ACLU of Colorado.
“As long as there’s no relationship between youth and staff, they will have to rely on practices that harm youth,” Logemann said. “They have to complete this shift and achieve a culture of caring to be able to eliminate these practices.”
Jacobson said staff morale “ebbs and flows” at different facilities across the state, but that they are doing their best to keep up with rapid changes mandated by the state. He added that the youth population committed to the facilities also has grown increasingly more complex and aggressive.
“We have heard from our staff that it has been difficult for them through our reform efforts, through recent legislation,” Jacobson said. “And some of that has pushed us to make change faster than we would have preferred.”
“Not how we should be handling child safety”
One of the concerns highlighted in the report is that the Department of Youth Services is a rare exemption from multiple overview policies that govern most other state departments.
Unlike other state agencies, the Department of Youth Services is not required to follow a rigid state lawmaking code known as the State Administrative Procedure Act, the ombudsman wrote. Agencies subject to the act are required to establish rule-making procedures that include public notification, distribution and hearings on all proposed changes.
“For reasons that are not clear, the DYS does not have a process for formulating rules, regulations or policies in accordance with the APA,” the report stated.
The agency also does not participate in the Colorado State Board of Human Services, which ensures coordination and procedural equity among state and local officials during the rule-making process.
Villafuerte said she’s puzzled as to why the child welfare system, which also falls under the Department of Human Services, is subject to rule-making regulations but the Division of Youth Services remains outside those rules’ purview.
“These are substantially the same kids,” Villafuerte said in an interview. “Yet in the child welfare space, we have a robust rule-making process where stakeholders come together. We don’t have a parallel process in DYS — I don’t understand why not.”
The applicability of the rule-making act to the Division of Youth Services “presents complex legal questions that are beyond the scope of this brief,” the report stated. The ombudsman recommended the Department of Human Services consult the attorney general’s office on the topic.
In its written response to the ombudsman’s report, the Department of Human Services agreed to several recommendations, including: publishing data and research on relevant policies; creating a notification system where stakeholders can sign up to receive alerts for new policies; and adding contact information for community members to inquire about changes in facilities.
Jacobson said his department agrees with much of the report, and continues to work toward a more trauma-informed environment in youth facilities.
Villafuerte said she’s heartened by the state’s response, but said it didn’t answer the most important question about why it is not subject to the rule-making process governing other agencies.
“We’re dealing with kids who have no access to the public by and large,” she said. “That speaks in favor of even greater transparency. These kids are off our radar until things go wrong. That’s a problem. That’s not how we should be handling child safety.”
