Virginia Regulatory Town Hall
Agency
Department of Juvenile Justice
 
Board
Department (Board) of Juvenile Justice
 
chapter
Regulation Governing Juvenile Secure Detention Centers [6 VAC 35 ‑ 101]
Action Comprehensively reviews & combines all regulations governing juvenile secure detention centers
Stage Proposed
Comment Period Ended on 4/7/2010
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1 comments

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4/6/10  4:03 pm
Commenter: Melissa Goemann, Mid-Atlantic Juvenile Defender Center

comments pertaining to all 3 proposed DJJ regs
 

T

  • We recommend amending several of the regulations to provide more protection for youth from sexual victimization:
    • Searches of Residents - 6VAC35-71-480, 6VAC35-101-560, 6VAC35-41-510 and Residents’ Privacy, 6VAC35-71-620, 6VAC35-101-730
§ Adoption in all DJJ facilities of NPREC Standard PP-4, which provides that except in the case of emergency or other extraordinary or unforeseen circumstances, the facility restricts nonmedical staff from viewing residents of the opposite gender who are nude or performing bodily functions and similarly restricts cross-gender pat-down searches.
    • Serious Incident Reports – 6VAC35-41-90, 6VAC35-71-60, 6VAC35-101-80
      • Any suspected case of sexual victimization, whether by staff or youth, should be required to be reported by all facilities as a serious incident report.
    • Staff Training and Retraining and Abuse Reporting - 6VAC35-41-190,200, 210, 130; 6VAC35-71-150, 160, 170, 190; 6VAC35-101-90, 180, 190, 200, 230.
      • All staff training and retraining should include instruction on identifying and preventing sexual victimization of youth and reporting abuse as well as training on the needs of LGBT youth.[1]
o    Sleeping Areas – 6VAC35-71-360
o    The regulation governing sleeping areas should take into account more than just the youth’s gender as is currently the only standard in this regulation. Pursuant to the NPREC Standards, in order to best protect vulnerable youth, juvenile correctional center employees should do the following:
§ “When determining housing, bed, program, education and work assignments for residents, employees must take into account a resident’s age; the nature of his or her offense; any mental or physical disability or mental illness; any history of sexual victim­ization or engaging in sexual abuse; his or her level of emotional and cognitive development; his or her identification as lesbian, gay, bisexual, or transgender; and any other information obtained about the resident.”[2] (AP-2).
o    Personnel Records and Background Checks– 6VAC35-41-310, 6VAC35-71-140, 6VAC35-101-310
o    To protect youth from sexual and other abuse, personnel records and background checks should include any grievances made against the employee by residents, including a written explanation of the circumstances leading to the grievance, the administrative procedure followed, and the result of the grievance.
o    Telephone Access – 6VAC35-101-580, 6VAC41-520, 6VAC35-71-490, 500
o    The proposed regulations only provide emergency telephone access to staff and to residents away from the facility. To further provide protection to youth in the facilities, emergency, non-pay telephone access should be available to all youth 24 hours a day.  
  • Youth have a constitutional right to access to the court while confined. However, there is currently no mechanism to appoint counsel to assist confined youth in Virginia so the only access to legal counsel for indigent youth is through pro bono efforts. To require that youth have a retainer agreement with counsel before they can even see them is an undue burden on the youth’s ability to gain the assistance of counsel in order to access the courts since youth will generally need to talk to counsel before they can decide to retain them even if they are pro bono. In fact, they may even need assistance to find pro bono counsel. Therefore, we urge the Board to remove this requirement for retained counsel from the regulation and to adopt the following amendments:
    • Contact with attorneys, courts, and law enforcement - 6VAC35-71-590(A) and 6VAC35-101-690, should be amended to read as follows: 
      • A. Residents shall have uncensored, confidential contact with their legal representative in writing, as provided for in 6VAC35-71-560 (residents' mail), by telephone, or in person. Reasonable limits may be placed on such contacts as necessary to protect the security and order of the facility. For the purpose of this section a legal representative is defined as an attorney licensed to practice law in the Commonwealth of Virginia or admitted pro hac vice for a specific case or a paralegal, investigator, or law student or other representative from the attorney’s office.  Evidence that the attorney has been retained shall not be required prior to permitting access.  A juvenile who wants to contact an attorney or other legal representative shall request and be provided assistance from DJJ staff at the facility.
    • Contact with attorneys, courts, and law enforcement – 6VAC35-41-600(A), should be amended to include the same definition of a legal representative as above:
      •  A. Residents shall have uncensored, confidential contact with their legal representative in writing, as provided for in 6VAC35-41-570 (residents' mail), by telephone, or in person. For the purpose of this section a legal representative is defined as an attorney licensed to practice law in the Commonwealth of Virginia or admitted pro hac vice for a specific case or a paralegal, investigator, or law student or other representative from the attorney’s office.  Evidence that the attorney has been retained shall not be required prior to permitting access.  A juvenile who wants to contact an attorney or other legal representative shall request and be provided assistance from DJJ staff at the facility.
  • Parents continue to play a valuable role in assisting and guiding confined youth. Accordingly, we ask that the regulation governing grievance procedures in juvenile correctional centers, 6VAC35-71-80(C), be amended to be required to be “posted in an area easily accessible to residents and their parents and legal guardians.” This would bring the regulation for juvenile correctional centers in line with the regulations for detention centers and group homes and halfway houses. Additionally, we ask that 6VAC35-71-580(A) regarding visitation be amended to remove the word “immediate” from before “family members” so that visitation by all family members, not just immediate family members, is not subject to unreasonable limitations.
[1]The NPREC standards provide the following requirements regarding training: The agency trains all employees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and under rel­evant Federal, State, and local law. The agency trains all employees to communicate effectively and professionally with all residents. Additionally, the agency trains all employees on a resident’s right to be free from sexual abuse, the right of residents and employees to be free from retaliation for reporting sexual abuse, the dynamics of sexual abuse in confinement, and the common reac­tions of sexual abuse victims. NPREC Standard TR-1, Id. at 21.
[2]NPREC Standard AP-2, Id. at 28.

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CommentID: 13886