S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4792

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen.  MONTGOMERY  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Children and Families

AN ACT to amend the executive law, in relation to  defining  a  bill  of
  rights for juveniles in the juvenile justice system

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The legislature finds and declares that research  based  on
national data from 2000 has shown that up to eighty percent of juveniles
in  juvenile  justice  systems  have  a  nexus  to substance abuse: 18.2
percent are under the influence of alcohol  or  drugs  while  committing
their  offenses,  53.9  percent  test  positive for drugs at the time of
arrest, 12.1 percent are arrested for  committing  an  alcohol  or  drug
offense,  62.5  percent report having substance abuse problems, and many
exhibit some combination  of  these  characteristics;  while  forty-four
percent  of  arrested juveniles meet clinical criteria for substance use
disorder requiring medical treatment, only 3.6 percent of arrested juve-
nile offenders with substance abuse and addiction problems  receive  any
form  of  substance  abuse treatment according to the National Center on
Addiction and Substance Abuse (CASA); while up to  seventy-five  percent
of all incarcerated juveniles have some diagnosable mental health disor-
der,  mental  health services remain scarce; that incarcerated juveniles
have an increased need for basic and special  education,  but  they  are
progressively  left  behind in systems that use uncredentialed teachers,
crowded and inadequate facilities and which fail  to  create  an  educa-
tional environment conducive to learning and development; that juveniles
who  drink  and use drugs are more likely to be arrested multiple times,
with each conviction raising the likelihood of the juvenile being  proc-
essed  through  adult  court  and  subject  to  an eventual adult felony
conviction, and such  juveniles  recidivate  faster  with  more  serious
offenses  than  those retained in juvenile court; and that a substantial

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03319-02-9

              

S. 4792                             2

percentage of adults in prison for felony crimes  were  incarcerated  as
juveniles.
  The  legislature  further  finds and declares that, with comprehensive
screening, the needs of juveniles can be identified and appropriate care
provided while maintaining the safety of the community; and  that,  with
appropriate  care,  juvenile  offenders  will  recidivate  less, and can
become productive, healthy  and  law-abiding  members  of  society.  The
legislature  therefore  declares  that  the  provisions  of this act are
necessary to protect the public health, safety and general welfare.  The
necessity  in the public interest for the provisions hereinafter enacted
is hereby declared as a matter of legislative determination.
  S 2. This act shall be known and may be  cited  as  the  "protect  our
children in the juvenile justice system act".
  S  3. The executive law is amended by adding a new section 511 to read
as follows:
  S 511. BILL OF RIGHTS FOR YOUTHS IN THE JUVENILE JUSTICE SYSTEM.    1.
ALL YOUTHS IN THE SYSTEM HAVE THE FOLLOWING RIGHTS:
  (A)  RIGHT  TO  REHABILITATION: IN THE HANDLING OF EACH JUVENILE CASE,
THE STATE SHALL USE ITS BEST  EFFORTS  TO  REHABILITATE  THE  YOUTH,  IN
FURTHERANCE  OF  WHICH, A COMPREHENSIVE ASSESSMENT SHALL BE MADE OF EACH
YOUTH'S SUBSTANCE USE, MEDICAL AND MENTAL HEALTH, EDUCATION  AND  FAMILY
ISSUES THAT MAY BE LINKED TO THE DELINQUENCY;
  (B)  RIGHT  TO  TREATMENT:  ALL YOUTHS IN THE SYSTEM HAVE THE RIGHT TO
EFFECTIVE, EVIDENCE-BASED TREATMENT SERVICES FOR SUBSTANCE  ABUSE  PROB-
LEMS  AND  DISORDERS AS WELL AS HEALTH (MEDICAL, MENTAL, DENTAL) ISSUES,
BASED ON THE MANDATED  COMPREHENSIVE  ASSESSMENT  OF  THEIR  NEEDS,  AND
PROVIDED BY TRAINED PROFESSIONALS;
  (C)  RIGHT  TO EDUCATION: ALL YOUTHS IN THE SYSTEM HAVE THE RIGHT TO A
PUBLIC EDUCATION, INCLUDING SPECIAL EDUCATION WHERE NEEDED,  THAT  MEETS
CRITERIA  AS  ESTABLISHED BY THE STATE EDUCATION DEPARTMENT; THE CREDITS
ISSUED FOR THIS COURSEWORK MUST BE CREDITED BY PUBLIC  SCHOOL  DISTRICTS
AND  DIPLOMAS  AWARDED  FOR CREDIT COMPLETION BY THE CHILD'S HOME PUBLIC
SCHOOL DISTRICT AS DETERMINED BY PERMANENT ADDRESS;
  (D) RIGHT TO FAMILY AND SOCIAL SERVICES: ALL YOUTHS IN THE SYSTEM HAVE
THE RIGHT TO SERVICES TO IMPROVE FAMILY AND SOCIAL FUNCTIONING;
  (E) RIGHT TO LEAST RESTRICTIVE ALTERNATIVES: ALL YOUTHS IN THE  SYSTEM
SHALL  BE  ENTITLED  TO THE LEAST RESTRICTIVE MEANS APPROPRIATE TO THEIR
INDIVIDUAL CASES THROUGHOUT THEIR  CONTACT  WITH  THE  JUVENILE  JUSTICE
SYSTEM.  AT  NO  TIME SHALL A YOUTH BE SUBJECT TO MORE RESTRICTIVE MEANS
THAN HIS OR HER CASE OTHERWISE WARRANTS IN ORDER TO  SECURE  APPROPRIATE
SERVICES;
  (F) RIGHT TO REINTEGRATION: ALL YOUTHS IN THE SYSTEM HAVE THE RIGHT TO
BE  PROVIDED  WITH  APPROPRIATE  AFTERCARE TO SUPPORT SUCCESSFUL REENTRY
INTO THE COMMUNITY THAT INCORPORATES A CONTINUITY OF CARE FROM PLACEMENT
THROUGH RELEASE. EACH CHILD ENTERING STATE CARE  POST-ADJUDICATION  WILL
HAVE  A  PLAN INDIVIDUALLY DEVELOPED FOR HIM OR HER BASED ON THE COMPRE-
HENSIVE ASSESSMENT. THERE SHALL BE PERIODIC REASSESSMENTS AT LEAST EVERY
ONE HUNDRED TWENTY DAYS. THIS PLAN SHALL CONTINUE UNINTERRUPTED THROUGH-
OUT THE STATE'S CARE OF  THE  CHILD,  INCLUDING  DURING  PROBATION,  AND
AFTERCARE RELEASE;
  (G)  RIGHT  TO  NON-DISCRIMINATION:  ALL YOUTHS IN THE SYSTEM HAVE THE
RIGHT TO HAVE ALL DETERMINATIONS IN THEIR CASES MADE WITHOUT  REGARD  TO
RELIGION,  RACE,  NATIONAL  ORIGIN,  ETHNICITY,  GENDER OR SEXUAL ORIEN-
TATION;
  (H) RIGHT TO SAFETY AND SECURITY: ALL YOUTHS IN THE  SYSTEM  HAVE  THE
RIGHT  TO  BE  HOUSED IN SAFE, DEDICATED JUVENILE FACILITIES, TO BE KEPT

S. 4792                             3

FREE FROM ANY FORM OF ABUSE, INCLUDING PROTECTION FROM  DISPROPORTIONATE
MEANS AND THE USE OF FORCE;
  (I) RIGHT TO COUNSEL: ALL YOUTHS IN THE SYSTEM HAVE THE RIGHT TO FREE,
COMPETENT COUNSEL AT ALL STAGES OF PROCEEDINGS;
  (J)  RIGHT  TO  PROTECTION  FROM SELF-INCRIMINATION: ALL YOUTHS IN THE
SYSTEM HAVE THE RIGHT TO APPROPRIATE SAFEGUARDS AGAINST  SELF-INCRIMINA-
TION,  INCLUDING  THE VESTING IN THE YOUTH OF A PRIVILEGE FOR ANY STATE-
MENT BY THE YOUTH GIVEN IN FURTHERANCE OF TREATMENT  OR  ASSESSMENT  FOR
TREATMENT;
  (K) RIGHT TO EVIDENCE-BASED PRACTICE: THE STATE SHALL TRACK AND EVALU-
ATE  THE  EFFECTIVENESS OF TREATMENT AND ASSESSMENTS OVER TIME TO ENSURE
THAT THE MEANS EMPLOYED ARE SCIENTIFICALLY SUPPORTED AND IMPROVED; AND
  (L) RIGHT TO SPEEDY REVIEW: ALL YOUTHS IN THE SYSTEM HAVE THE RIGHT TO
HAVE THEIR CASES PROCESSED FAIRLY AND QUICKLY.
  2. NONE OF THE FOREGOING RIGHTS SHALL ABRIDGE OR  ABROGATE  ANY  OTHER
RECOGNIZED  RIGHTS,  ENTITLEMENTS OR PRIVILEGES ENJOYED BY THOSE IN WHOM
THESE RIGHTS ARE VESTED.
  3. EACH DIVISION FACILITY HOUSING  OR  PROVIDING  SERVICES  TO  YOUTHS
TRANSFERRED  TO THE CUSTODY OF THE DIVISION PURSUANT TO THE FAMILY COURT
ACT OR THE PENAL LAW SHALL POST, IN AT LEAST  ONE  PROMINENT  PLACE  AND
READILY  ACCESSIBLE  TO THE GENERAL PUBLIC, INCLUDING YOUTHS IN THE CARE
OR CUSTODY OF THE FACILITY, A LEGIBLE STATEMENT SETTING FORTH THE RIGHTS
ENUMERATED IN SUBDIVISION ONE OF THIS SECTION, TOGETHER WITH A STATEMENT
DESCRIBING THE PROCESS FOR FILING COMPLAINTS WITH THE DIVISION  CONCERN-
ING ANY VIOLATION OF SUCH RIGHTS. SUCH POSTED STATEMENT SHALL BE WRITTEN
IN  BOTH  ENGLISH  AND SPANISH, SHALL BE TITLED, IN LETTERING NO SMALLER
THAN TWO INCHES IN HEIGHT AND TWO  INCHES  IN  WIDTH,  WITH  THE  PHRASE
"PROCESS  FOR  REGISTERING    COMPLAINTS" AND SHALL CONTAIN THE NAME AND
TELEPHONE NUMBER OF  THE  OFFICE  WITH  WHICH  TO  REGISTER  COMPLAINTS,
TOGETHER  WITH SUCH OTHER INFORMATION AS THE DIVISION DEEMS TO BE NECES-
SARY.
  4. COMPLAINTS REGARDING VIOLATIONS OF THE RIGHTS ENUMERATED IN  SUBDI-
VISION  ONE  OF  THIS SECTION MAY BE MADE DIRECTLY TO THE DIVISION OR TO
THE DIVISION FACILITY WHERE THE VIOLATION OCCURRED. ALL COMPLAINTS  MADE
TO  THE  DIVISION  FACILITY  SHALL  BE RECORDED BY THE FACILITY ADMINIS-
TRATION, AND SHALL IMMEDIATELY BE REFERRED TO THE DIVISION FOR  INVESTI-
GATION. THE DIRECTOR SHALL PROMULGATE RULES AND REGULATIONS AS HE OR SHE
DEEMS NECESSARY TO GIVE EFFECT TO THE PROVISIONS OF THIS SECTION.
  5.  (A)  THE  RIGHT  TO  REHABILITATION  SHALL  INCLUDE THE RIGHT TO A
COMPREHENSIVE  ASSESSMENT  OF  THE  YOUTH'S  MEDICAL  AND  PSYCHOLOGICAL
HEALTH,  AND EDUCATIONAL, FAMILY AND SUBSTANCE ABUSE ISSUES PRIOR TO THE
TIME THE YOUTH ENTERS INTO THE CUSTODY OR CARE OF THE  JUVENILE  JUSTICE
SYSTEM. YOUTHS SHALL BE PLACED IN A DIVISION FACILITY ONLY AFTER ASSESS-
MENT AND A DETERMINATION THAT THE PLACEMENT IS THE LEAST RESTRICTIVE AND
MOST  APPROPRIATE FACILITY AVAILABLE. IN CASES INVOLVING THE TRANSFER OF
A YOUTH WITH SUBSTANCE ABUSE PROBLEMS TO THE  CUSTODY  OF  THE  DIVISION
PURSUANT TO THE PENAL LAW, PRIORITY SHALL BE GIVEN TO TREATING SUBSTANCE
ABUSE ISSUES.
  (B)  THE  RIGHT TO TREATMENT SHALL INCLUDE THE RIGHT TO BE ASSIGNED TO
AND HAVE ACCESS TO APPROPRIATE COUNSELORS AND  TREATMENT  PROGRAMS.  ANY
YOUTH  WHO WAS FOUND TO HAVE SUBSTANCE ABUSE ISSUES SHALL UNDERGO TREAT-
MENT PROGRAMS WHILE IN THE JUVENILE JUSTICE SYSTEM.
  (C) THE RIGHT TO EDUCATION SHALL INCLUDE THE RIGHT  TO  BE  TAUGHT  BY
LICENSED,  GRADE  APPROPRIATE  TEACHERS  IN  ACCORDANCE WITH THE YOUTH'S
GRADE LEVEL AND TO EARN TRANSFERABLE SCHOOL CREDIT  EQUIVALENT  TO  THAT
WHICH  THE  YOUTH  WOULD HAVE HAD THE OPPORTUNITY TO OBTAIN AT A REGULAR

S. 4792                             4

FULL-TIME SCHOOL, AS WELL AS TO RECEIVE CAREER EDUCATION AS PROVIDED  BY
SECTION FIVE HUNDRED THIRTEEN OF THIS SUBTITLE, WHERE APPROPRIATE.
  (D) THE RIGHT TO REINTEGRATION SHALL INCLUDE THE RIGHT TO A COMPREHEN-
SIVE  ASSESSMENT  OF  THE  YOUTH'S MEDICAL AND PSYCHOLOGICAL HEALTH, AND
EDUCATIONAL, FAMILY AND SUBSTANCE ABUSE ISSUES IMMEDIATELY PRIOR TO  THE
TIME  THE  YOUTH  IS RELEASED FROM THE DIVISION FACILITIES, THE RIGHT TO
HAVE A COUNSELOR ASSIGNED TO  SUPPORT  THE  YOUTH'S  RE-ENTRY  INTO  THE
COMMUNITY  AND THE RIGHT TO RECEIVE A MINIMUM OF TWO HOURS OF COUNSELING
PER WEEK FOR UP TO A YEAR AFTER THE YOUTH IS DISCHARGED FROM THE FACILI-
TY. ANY YOUTH WHO WAS FOUND TO HAVE SUBSTANCE ABUSE ISSUES SHALL UNDERGO
TREATMENT PROGRAMS, AS NEEDED, FOR UP TO TWO  YEARS  AFTER  LEAVING  THE
FACILITY.
  (E)  THE  RIGHT TO SAFETY AND SECURITY SHALL INCLUDE: (I) THE RIGHT TO
BE HOUSED IN FACILITIES SEPARATE AND APART FROM FACILITIES USED TO HOUSE
ADULT INMATES OF THE JUSTICE SYSTEM. NO YOUTH IN  THE  JUVENILE  JUSTICE
SYSTEM SHALL HAVE CONTACT WITH ADULT INMATES OF THE JUSTICE SYSTEM OR BE
HELD IN ANY PRISON OR OTHER FACILITY DESIGNATED FOR USE BY ADULT INMATES
OF  THE  JUSTICE  SYSTEM WHEN THE FACILITY IS UTILIZED BY ADULT INMATES;
AND
  (II) THE RIGHT TO HAVE ACCESS TO A COUNSELOR  WHO  IS  NOT  AFFILIATED
WITH  THE DIVISION FACILITY IN WHICH THE YOUTH RESIDES OR FROM WHICH THE
YOUTH RECEIVES TREATMENT, TO HAVE ALLEGATIONS OF MISTREATMENT BY FACILI-
TY STAFF PROMPTLY INVESTIGATED AND TO HAVE  A  COMPLETE  RECORD  OF  THE
INVESTIGATION  AND  THE DISPOSITION OF THE MATTER FILED WITH THE COMMIS-
SIONER'S OFFICE. A YOUTH SHALL BE IMMEDIATELY REMOVED  FROM  A  DIVISION
FACILITY  FOLLOWING  A COMPLAINT OF ABUSE OF THE YOUTH BY FACILITY STAFF
AND SUCH YOUTH SHALL NOT BE RETURNED TO THE FACILITY WHERE THE ABUSE WAS
ALLEGED TO HAVE OCCURRED UNLESS AND UNTIL THE COMPLAINT IS  INVESTIGATED
AND THE CASE IS CLOSED WITH A FINDING THAT THE ALLEGATIONS OF ABUSE WERE
FALSE.    IF ABUSE WAS FOUND TO HAVE OCCURRED, THE YOUTH SHALL BE PLACED
AT A DIFFERENT DIVISION FACILITY FOR THE DURATION OF HIS OR HER TIME  IN
THE JUVENILE JUSTICE SYSTEM.
  S 4. This act shall take effect immediately.