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June 13, 1973;

Robert MARTARELLA, by his next friend and Law Guardian, Charles Schinitsky, et al., Plaintiffs,
Florence KELLEY, Administrative Judge, the Family Court Judges of the State and City of New York, et al., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


Lasker, District Judge.

 This civil rights action is brought by children defined under § 732 of New York's Family Court Act as Persons In Need of Supervision. They alleged that the conditions in which they are and have been held in the Juvenile Detention Centers of New York City, violate the Eighth Amendment of the Constitution. After a nonjury trial we held, by opinion filed October 16, 1972, that the physical conditions at Manida center were constitutionally inadequate, that they were adequate at Spofford, and that the issue as to Zerega, which had by then been closed, was moot. We also ruled that the rights of those who were held in long-term detention -- a category whose definition was deferred -- were violated because no adequate plan of treatment was provided for them.

 In our opinion, we observed that:

"In a case of public import involving novel and delicate issues, in which developments in the very subject matter have occurred in the period between trial and decision, injunctive relief should be fashioned with deliberation. The timing of the closing of public facilities, the alteration of the programs for long termers, and determination of an acceptable definition distinguishing short and long termers are matters on which the court should not issue a decree without the considered guidance of the parties." 349 F. Supp. 575, 603.

 Since the date of the opinion, the Court has conferred on a number of occasions with the parties to consider the terms of an Order. In the course of those discussions, and from analysis of briefs, separate decrees proposed by the respective parties and affidavits in support of them, it became apparent that issues of fact remained to be explored as to 1) when Manida could and should be closed; 2) the definition, in terms of days of detention, of a long termer; 3) how the right to treatment of long termers should be implemented. As a result, the Court ordered a further hearing at which Wayne Mucci, Director of the Bureau of Institutions and Facilities of Special Services for Children (a division of the Human Resources Administration of New York City), testified extensively on March 14, 1973. Mr. Mucci appeared as a witness for the defendants. Plaintiffs rely on cross-examination of Mr. Mucci and on the affidavits, briefs and proposed decrees which they have submitted. In addition to studying the papers and conducting a further hearing, the Court visited Manida for a period of some hours on March 15, 1973.

 There are substantial differences between the parties as to the relief which should be afforded. 1: Plaintiffs urge that Manida be closed immediately; defendants that its use be discontinued September 30, 1973. 2: Plaintiffs contend that detention in excess of 10 days be defined as long term; defendants that detention should not be considered long term unless it exceeds 45 days. 3: Plaintiffs propose a decree specifying detailed standards of treatment; defendants argue that the decree should include no reference to treatment, either general or specific.

 1. Manida : In our earlier opinion, we described (at 597) the physical conditions which rendered Manida constitutionally inadequate under the Eighth Amendment and which prompted even the defendants to stipulate that the building was inappropriate as a facility for the detention of children. These included falling plaster, peeling paint, cracks in walls and ceilings, some unuseable plumbing, roof leaks, in addition to inadequate recreational facilities and other inherent deficiencies. Since the date of the opinion remediable defects have been cured: that is, wall cracks, roof leaks and plumbing malfunction have been repaired and the interior repainted. While the defendants agree that the building is still inappropriate for detention of children, they argue that these corrections have made the structure decently habitable for a further short period, and that the Court should allow its continued use during that interval to avoid the disruption of sending its resident girls to Spofford -- a boys' institution -- until alternative facilities for girls, now being created, are available.

 We find, as a result of our visit to Manida, that it is decently habitable for a further limited period and that the problems of placing the Manida girls in Spofford -- particularly setting up separate sleeping, eating and recreational arrangements for them -- are real and would cause significant disruption. Such disruption would be unjustified in light of the small gain to be accomplished during the short period of a few months being considered. Nevertheless, Manida should be closed as soon as practicable and we are not persuaded by anything in the record that such an extension should run to September 30, 1973, as suggested by the defendants. To the contrary, we find that, on the facts and testimony of the defense itself (Transcript of Hearing of March 14th, page 114), Manida can practicably be closed by August 15, 1973, and that the defendants should be held to that date.

 We realize that the ability to move girls at Manida depends on a number of factors, including the completion and operation of various new small facilities. But we believe that the accomplishment of the program by August 15th is feasible, that it is more likely to occur if August 15th is set as the critical date than if not, and that constitutional rights cannot be further deferred without a showing of impossibility of performance.

 2. Definition of Long-Term Detention: The parties agree that a plan of treatment for a child held at Juvenile Center is desirable, and we have held it constitutionally necessary. The parties differ as to how long-term detention should be defined; plaintiffs proposing a ten day, and defendants a forty-five day period. Defendants argue, in effect, that if the definition of long term were set below forty-five days, the number of children to whom it would apply would be so great that the staff would be insufficient to evolve and administer plans of treatment. This argument must be rejected, first, because constitutional rights cannot be denied on account of inadequacy of government resources (Wyatt v. Stickney, 344 F. Supp. 373 (1972) and 344 F. Supp. 387 (M.D. Ala. 1972); Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio, W.D. 1971), aff'd sub. nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); Inmates of Boys' Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972) and New York State Ass'n for Retarded Children, Inc. v. Rockefeller and Parisi v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973)); second, because if the argument were accepted the result would be that the larger the number of children detained for long periods -- and therefore needing treatment -- the higher would be the threshold of definition and the fewer the number of children receiving treatment; third, the facts and testimony submitted by the defendants themselves confirm that the threshold of definition can practicably be set well below forty-five days even within present limitations of personnel available (see, e.g., Transcript of Hearing, March 14th, page 114).

 The defendants admit "frankly -- that we can handle the 30 day program" (Transcript of Hearing, March 14, 1973, page 44), and that the sole reason for proposing a forty-five day definition is that it would allow the staff to do a good job, whereas lowering the threshold would lower the quality of the program. *fn1" A deficiency of personnel, however, cannot be accepted either logically or constitutionally as a rationale for defining the needs of those entitled to treatment. If more staff members are necessary to do the job, the City must furnish them in order to meet its constitutional obligations.

 We recognize that neither psychiatric, social work nor legal standards have advanced to a point which establish a particular definitional threshold of long-term detention as being demonstrably correct; that is, of defining the point in time beyond which holding a child in secure custody without "treatment" violates the Eighth Amendment. it is nevertheless our obligation to establish such a threshold. In doing so we must remember that the Eighth Amendment does not impose on the States the requirement of furnishing the best possible service for those in custody nor of adhering to the highest professional standard. The office of the Eighth Amendment is to assure that custodial conditions are minimally acceptable -- that is, not cruel or unusual. Applying this admittedly elusive and difficult concept we find, on such evidence as the record contains, that when a child is held for 30 days or longer in secure custody without "treatment", that deprivation is of constitutional proportion; and, accordingly, we define detention for 30 or more days as "long-term". *fn2"

 3. Specificity of the Order: We agree with plaintiffs that our Order should be specific in outlining a constitutionally adequate standard of treatment at the Centers.

 Although we share the frequently enunciated view that it is generally undesirable (both for the courts and the institutions) that courts should administer institutions, there are a number of reasons why we have concluded that in the circumstances of this case a specific Order is necessary.

 In the first place, our Order does not contemplate continuing administration by the court, but rather the establishment of standards which the institution will administer just as it administers legislative or regulatory standards. Second, we rehearsed, in our earlier opinion, the sad history of ignored reports over a period of generations (culminating in the Stone and Citizens Committee Reports of 1971 and 1970), all urging reform and improvement of juvenile detention facilities, and all being largely, if not altogether disregarded and treated as mere pious sentiment.

 Indeed, the 1973 Criminal Justice Plan of the Criminal Justice Coordinating Council of New York City points out that many of the deficiencies earlier noted remain. For example, it comments (at page 71) that "[built] into the juvenile justice system to a far greater degree than its criminal justice counterpart is the structure for rehabilitation", "albeit a shell ...

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