discussed the procedures necessary to protect the rights of adult inmates regarding suspension of privileges. In 1974, the Supreme Court considered the due process procedures required at a disciplinary hearing involving residents in adult correctional institutions who were facing the loss of good time credit. Wolff v. McDonnell, 418 U.S. 539 (1974). The Court stated that due process required: (1) written notice at least twenty-four hours prior to the hearing; (2) a written statement of the evidence relied on and reasons for the proposed disciplinary action; and (3) a hearing which includes the right to call witnesses in ones behalf as long as it does not endanger institutional safety. The Court established neither a right to confront and cross-examine witnesses nor a right to counsel. If the inmate is illiterate or the case involves a complex issue, however, the accused should be provided with representation. Id.

More recently, the Court Reaffirmed Wolff in Baxter v. Palmigiano, 425 U.S. 308 (1976). Again the Court stated that an inmate has no right to retained or appointed counsel at the hearing. According to the Court, the ability of the inmate to call, confront, and cross-examine witnesses is within the discretion to prison officials. Id.

The Supreme Court has also addressed the issue of procedural due process in the context of public high school disciplinary proceedings and has held that students facing temporary suspension have interests which qualify for procedural protection. Goss v. Lopez, 419 U.S. 565 (1974). When a student faces a suspension of ten or fewer days, he/she must be given oral or written notice of the charges against him/her, and, if they are denied, school authorities must explain the reasons for their proposed action and allow the juvenile to present his/her version of the events. Id at 581. Although notice and hearing should precede suspension, the Court noted that in situations where the student's presence endangers persons or property or threatens disruption of the academic process, notice, and hearing following an immediate suspension is justified. Id at 586. The Court refused to construe the due process clause to require that the student be given the opportunity to secure counsel, to confront and crossexamine witnesses supporting the charge, or to present his/her own witnesses. Id at 584. Importantly, the Court stated that its holdings are confined to short suspensions, not exceeding ten days, and stated that longer suspensions or expulsions may require more formal proceedings. Id at 586. See also Wood v. Strickland, 420 U.S. 308 (1974) (Court remanded a case involving expulsion of public high school students for a discussion of procedural due process requirements).

This standard, with support from other commentators and case law, provides that due process procedures be utilized before imposing disciplinary sanctions against juveniles in residential facilities. The standard also recommends that the facility maintain a chronological record of all disciplinary actions taken against its residents. The record should include the child's name, the name of the person imposing the discipline, and the date of, the duration of, the action leading to, and the reasons for the disciplinary action. This assures that the right to review will be meaningful and will be based on accurate records. See Standard 1.53.

The standard also recognizes the facility's need for some

latitude in disciplining children. Thus, confining a child to any room for less than one hour or suspending a privilege for less than twenty-four hours does not require any formal proceeding prior to the imposition of the sanction. Standards 4.81 and 4.82 do, however, narrow the scope of the institution's power in this regard by providing grievance procedures and the ability to refer unwarranted discipline to the ombudsman.

This standard provides that a child in a facility other than a foster home facing room confinement of more than one hour or privilege suspension of more than twenty-four hours, be accorded the right to notice of the allegation, access to a facility ombudsman or a person of similar status, and an opportunity to respond to the allegation. This is similar to the minimum procedures set forth in Goss and the Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Corrections Administration, Standard 8.8 (1977) [hereinafter cited as IJA/ABA, Corrections Administration]. It does, however, expand on both by providing the child with the opportunity to consult with the facility ombudsman before being asked to respond to the allegations. While the sanctions imposed are not de minimis, see Goss, they are not so great that full due process hearings are warranted. Room confinement can extend no more than twenty-four hours for each instance requiring disciplinary actions. A suspension of a privilege can extend only up to seven days. While this may seem harsh to a juvenile it is not very severe. In light of the sanctions, this procedure provides sufficient protection for the juvenile while not unduly hampering the facility program.

Foster homes are exempt from this procedure. The goal of a foster home is to recreate to the greatest extent possible a normal home environment. This procedural process would be counter to that purpose. Since abuses are more likely to occur in large facilities, it is not unreasonable to require more formal procedures in them. Further, should abuses occur in a foster home, resort to the ombudsman and the grievance procedure is always available to remedy the problem. See Standard 4.81 and 4.82.

The standard requires that a hearing be held to determine whether allegations are true and to determine whether the sanctions are appropriate in cases where a child faces suspension of privileges for more than seven days. See National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 20.5 (1976) [hereinafter cited as Report of the Task Force] (full due process hearing required when facing more than twenty-four hours in secure quarters).

Specifically, the child is entitled to the following:

a. Written notice of the rule violated and the date, time, place, and nature of the alleged violation upon which the hearing is based.

b. Adequate time to prepare. Accord, IJA/ABA, Corrections Administration, supra at Standard 8.9 (written notice twenty-four hours after discovery of infraction); Report of the Task Force, supra at Standard 20.5 (2) (written notice of the allegation and evidence forty-eight hours in advance of factfinding decisions); In re Savoy, J-4808-70 (D.C. Super. Ct.

1976) at 7 (oral notice to be followed by written notice of allegation and procedure to obtain representation; hearing to follow within forty-eight hours of written notice).

c. Representation by the facility ombudsman, a member of the facility staff other than the ombudsman, another juvenile, or a volunteer from an established volunteer program. Accord, IJA/ABA, Corrections Administration, supra at Standard 8.9; Report of the Task Force, supra at Standard 20.5(3) (fact finders should provide substitute counsel for children who do not comprehend proceedings as a result of complexity or lack of maturity or intellectual ability; translator to be provided for non-English speaking children); In re Savoy at 8 (representative of child's choice, chaplain, or staff member).

d. Present evidence and testify.

e. Call and cross-examine witnesses. Accord, IJA/ABA, Corrections Administration, supra at Standard 8.9; Report of the Task Force, supra at Standard 20.5(4); In re Savoy at 8, 9. f. An impartial hearing officer or board. Accord, IJA/ ABA, Corrections Administration, supra at Standard 8.9 (three-person board: one member not an employee at the facility); Report of the Task Force, supra at Standard 20.5(1); and In re Savoy, at 8 (three staff members; one on the counseling staff).

g. A tape-recorded hearing with the tape maintained by the agency for a two-year period and with access to the tape or a transcript thereof. Accord, Report of the Task Force, supra at Standard 20.5(5) (right to receive written record); and In re Savoy at 9.

h. Review of the decision by the agency director or an agency official above the level of facility director who reports to the agency director, or by an independent review board. Accord, IJA/ABA, Corrections Administration, supra at Standard 8.9 (review by program director and by independent review board); Report of the Task Force, supra at Standard 20.6 (review on one of three grounds: procedural violations; new, relevant evidence; disposition disproportionate in relation to findings); In re Savoy at 9,10 (by superintendent who may suspend decision, remand case, approve or decrease sanction).

This standard recommends that the decision should be rendered orally at the hearing. A written decision including facts and reasons underlying the determination, should be submitted within two days to the agency. The child and the placing family court should each receive a copy. Accord, Report of the Task Force, supra at Standard 20.5(5); In re

Savoy at 9 (both establishing the right to a written copy of board's disposition). The purpose of providing a written copy of the decision is to assure that the agency and the child are aware of the exact nature of the event and the reasons why sanctions were imposed. This will prevent later misinterpretations by others working with the juvenile. Similarly, if the court is to meaningfully review the case, it should be clearly informed regarding all aspects of the juvenile's progress.

If additional sanctions are warranted, the hearing officer may extend the suspension for a period not to exceed a total of fourteen days. See IJA/ABA, Corrections Administration, supra at Standard 8.9 (ten-day limit on room confinement; thirty-day limit on suspension of privileges); In re Savoy, (seven-day limit on room confinement). See also Standard 4.53 and Commentary.

Foster homes are not exempt from this provision. The National Advisory Committee believed that extended sanctions should always be imposed by a neutral fact finder. Despite the fact that the potential for abuse of suspensions is less in foster homes than in other facilities, resort to the more formal procedure is still warranted.

The National Advisory Committee recommends the adoption of this standard as an action each state can take immediately, without a major reallocation of funds, to improve the administration of juvenile justice.

4.6 Use of Restraints 4.61 Mechanical Restraints

Mechanical restraints should be used only when a juvenile is uncontrollable and constitutes a serious and evident danger to him/herself or to others, or during transportation when necessary for public safety. Use of mechanical restraints except during transportation should not be imposed for more than a half hour. When in restraints, a juvenile should not be attached to any furniture or fixture.

Sources:

less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment is unnecessary and therefore excessive.

This philosophy has also been implemented by many state statutes. See National Law Center, Law and Tactics in Juvenile Cases, 547 (1977); Standard 4.410 and Commentary.

Standard 4.61 is meant to regulate those few circumstances that require the use of mechanical restraints. The guidelines to be followed are those established in Pena v. New York State Division for Youth, 419 F. Supp. 203 (S.D.N.Y. 1976). In that

Commentary

This standard recommends the elimination of the use of mechanical restraints in all but a few regulated circumstances. The term mechanical restraints is meant to include handcuffs, ropes, chains, straitjackets, and other such types of security equipment. Mechanical restraints may only be used when a juvenile is not otherwise controllable and presents a danger to him/herself or others. If used, mechanical restraints may not be imposed for more than a half hour, nor should they be used to attach a juvenile to furniture or fixtures. Another recognized exception is for the transportation of juveniles. If restraints are needed to protect the public, they may be used for the duration of the transportation.

The restriction on the use of mechanical restraints is based on the concept of least restrictive alternative. See Standard 4.410 and Commentary. In Shelton v. Tucker, 264 U.S. 297 (1960), the Supreme Court held that "even when government purposes are legitimate and substantial, they should not be pursued by means that "broadly stifle fundamental personal liberties when the end can be more narrowly achieved," at 488. Cf. Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974) rev'd on other grounds, 585 F.2d 864 (5th Cir. 1976), rev'd and remanded, 430 U.S. 322, remanded on rehearing, 562 F.2d 993 (5th Cir. 1977). Quoting from Furman v. Georgia, 408 U.S. 238, 279 (1971), the 7th Circuit in Nelson v. Heyne, 491 F.2d 352, 354 (7th Cir.), cert. den., 417 U.S. 987 (1974) followed a similar test in determining that Eighth Amendment violations occurred in a juvenile reform school.

...The infliction of a severe punishment by the state cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly

restraints is highly anti-therapeutic and should be tolerated only in cases where a child is a serious and evident danger to himself or others and incapable of being controlled by any less restrictive means such as restraint by a staff member." Id. 211. The court forbade mechanical restraints for longer than thirty minutes (except in transportation situations) and absolutely prohibited the binding of hands and feet and the restraining of a juvenile to a juvenile to a piece of furniture.

This absolute prohibition against their use for over thirty minutes (except when in transit) and against attaching juveniles to fixtures reflects the belief that neither is necessary in most situations and that when legitimate needs arise, they are of short duration. Room confinement provided for by Standard 4.52 is adequate to confine and control most juveniles who are harmful to him/herself or others. Additionally, casework and psychiatric services should be sufficient once the outburst has subsided.

Thirty minutes is regarded as the maximum time necessary to control a juvenile and to get him/her to a less restrictive setting. The only recognized exception occurs when a juvenile is being transported. Due to the security limitations of a vehicle, it may be necessary to use mechanical restraints to ensure public safety. The implication of the standard's exception is that this should only be considered if public safety is a real concern and then, only for as long as the juvenile is in actual transit.

To attach anyone to a piece of furniture unnecessarily is to degrade them and to damage their human dignity. The standard grants no exceptions to this prohibition. The standards as a whole reflect an attempt to make the juvenile justice system more humane. Strictly limiting the unnecessary use of mechanical restraints is one step in this direction. Accord, American Correctional Association, Commission on Accreditation for Corrections, Manual of Standards for

Juvenile Detention Facilities and Services, Standard 8308 (1978) [hereinafter cited as Manual of Standards].

The Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Corrections Administration, Standard 7.8 (1977) [hereinafter cited as IJA/ABA, Corrections Administration] is much stricter than this standard. The IJA/ABA, Corrections Administration, supra would only allow mechanical restraints during transportation. The IJA/ABA Joint Commission found two reasons for this position. First, the small size of the program should never necessitate such restraints within the facility, and second, the consistent history of abuse of these methods in juvenile corrections settings demand their prohibition.

The IJA/ABA, Corrections Administration, supra at Standard 7.8 Commentary cites Pena and Morales as justification. In Pena, agency regulations and state statutes had been developed regarding mechanical restraints before the case was brought. Despite these regulations, the abuses by staff members were found to be rampant in both instances.

The IJA/ABA, Corrections Administration reflects the position that cases like Morales and Pena prove that, despite regulations, infractions will occur. This standard, although recognizing that past abuse has occurred, nevertheless allows a very limited use of restraints to accommodate facility concerns. In a case where an abuse does occur, referral to the grievance mechanism, see Standard 4.81, or to the ombuds

4.62 Medical Restraints

For the purposes of these standards, medical restraints are medication administered either by injection or orally for the purposes of quieting an uncontrollable juvenile.

Medical restraints should be administered only in situations in which a juvenile is so uncontrollable that no other means of restraint can prevent the juvenile from harming him/herself. Medical restraints should be authorized only by a physician and should be administered only by a physician or a registered

nurse.

Orders authorizing registered nurses to administer prescribed psychiatric medication at their own discretion for purposes of crisis intervention, should only be issued by a psychiatrist who has examined the juvenile and determined that such an order is required by the juvenile's ongoing treatment needs. A report should accompany each such order explaining the facts and reasons underlying it and providing specific instructions. The order should be re-examined weekly to determine whether the order is still necessary. If the order is continued, a written report explaining the facts and reasons underlying the continuation should be prepared monthly. A copy of reports explaining the issuance or continuance of such orders should be provided to the director of the facility and placed in the juvenile's file.

Sources:

See generally New York Official Compilation of Codes, Rules and Regulations § 168.3(b) (1974).

Commentary

This standard recommends guidelines for the use of medication administered orally or by injection for the purposes of quieting an uncontrollable juvenile where no other means of restraint can prevent the juvenile from harming him/herself. The standard requires authorization by a physician and allows only physicians and registered nurses to administer any medical restraints.

Authorization for registered nurses to administer psychiatric medication for crisis intervention at their own discretion is only allowed if: (1) it is issued by a psychiatrist who has examined the juvenile and determined that the order is consistent with ongoing treatment needs; (2) a report explaining facts and reasons behind order and providing detailed instructions and guidelines for administering the drugs accompanies the order; and (3) the juvenile is reexamined weekly to determine if the need still exists. If the order is continued, a report must be filed monthly setting forth the facts and reasons for its continuation. A copy of all reports should be given to the director of the facility and also placed in

the juvenile's file. See Standard 1.5 for provisions concerning confidentiality.

Nelson v. Heyne, 491 F.2d 352 (7th Cir.), cert.den., 417 U.S. 987 (1974) ruled that the use of medical restraints under conditions existing at an Indiana training school violated the prohibition against cruel and unusual punishment. The court ruled that the state's interest in punishment and the control of excited behavior did not justify exposing the juvenile to the potential hazards involved. Id. at 357. In Pena v. N. Y. State Division for Youth, 419 F. Supp. 203 (S.D.N.Y. 1976) the court found that requirements similar to those recommended by this standard were the "minimal constitutional standards which must be adhered to in the administration of a juvenile training school." Id. at 208-209. The Pena court found that in light of the fact that those regulations were in effect when the abuses took place, special additional requirements must be maintained in using medical restraints. Thorazine, a major tranquilizing drug, was not allowed except as a part of an ongoing treatment plan and the option of taking medication orally or intramuscularly was given to the juvenile. The present standard does not specifically address either of these issues. However, when read in conjunction with Standards 4.410 and 4.214, this standard would forbid the use of major tranquilizing drugs which were contrary to the treatment plan. Further, the use of oral medication should be preferred. See Standards 4.410 and 4.214 and Commentaries.

This standard like the American Correctional Administration, Commission on Accreditation for Corrections, Manual of Standards for Juvenile Detention Facilities and Services, Standards 8247 through 8250 (1978), is meant to prohibit the use of stimulants, tranquilizers, or psychotropic drugs for purposes of program management and control or for purposes of experimentation and research. Medical restraints are only allowed to protect the juvenile. As long as a juvenile is not endangering him/herself, medical restraints may not be used. Where a juvenile's behavior becomes uncontrollable and disruptive to other juveniles other forms of control are appropriate. See Standards 4.51-54; 4.61 and Commentaries. The standards recognize no circumstance where the safety of others cannot be ensured through the use of some sort of physical restraint, see Standard 4.61, room confinement, see Standard 4.52, or simple separation of the juveniles. In employing medical restraints, as with any other restraints, the least restrictive and dangerous drug should be used. See Standard 4.410 and Commentary.

The standard differentiates between medical restraints and psychiatric medication. Medical restraints, as explained above, are limited to absolute emergency situations. Even then, they must be authorized by a psychiatrist and administered only by the physician or a registered nurse.