The Legal Aid Society lauded a recent ruling in New York State Supreme Court which found that the New York City Administration for Children’s Services (ACS) had been unlawfully re-incarcerating hundreds of children since 2012, after the implementation of “Close to Home” – a juvenile justice reform initiative designed to keep youth close to their families and community.
Up until the implementation of “Close to Home,” youth adjudicated as juvenile delinquents were placed in the custody of the New York State Office of Children and Family Services (OCFS). State regulations governed how OCFS could release a youth on parole (aftercare); supervise that release; and revoke that release. After “Close to Home” became law, Legal Aid clients and other youth were placed in the custody of ACS in the boroughs.
The legislation also contemplated a framework for parole release, supervision, and revocation - to be overseen by ACS - but the law required OCFS to promulgate regulations to grant ACS that authority. OCFS never promulgated such regulations – which OCFS acknowledged in an April 2019 memo justifying the promulgation of emergency regulations for the first time – and for years, ACS and individual hearing officers unlawfully manufactured an entire scheme for parole and parole revocation, which led to the unlawful re-incarceration of hundreds of New York City youth.
Without lawful regulations in effect, hearing officers arbitrarily determined whether to apply an internal ACS policy – which the Court ruled lacked any authority – or outdated OCFS regulations, that were inapplicable to ACS. As a result, Legal Aid attorneys were unable to predict the framework under which parole would be revoked. These ad hoc policies resulted in inconsistent outcomes and arbitrary determinations.
Additionally, ACS forbade the hearing officers from considering mitigating evidence, in violation of settled constitutional law. Accordingly, if ACS established a technical and minor violation, the hearing officers were mandated to re-incarcerate the child. Under well-established law, hearing officers should be required to consider all less drastic alternatives, including modifying the release conditions and ordering additional supportive services.
In its emergency justification statement, OCFS acknowledged that “presently, the Office does not have regulations governing the release and revocation of such youth.”
“This ruling finds that ACS unlawfully deprived our clients and others of their liberty and re-incarcerated as they saw fit without working off of any valid regulations,” said Dawne Mitchell, Attorney-In-Charge of the Juvenile Rights Practice at The Legal Aid Society. “This is a major victory, but the damage has already been done for the hundreds of youth whose aftercare was revoked in an unlawful and capricious fashion. We thank the Court for righting this injustice.”
The Legal Aid Society brought this lawsuit on behalf of a client whose parole was revoked, and who was returned to detention, not for a new crime but for alleged reporting and curfew violations, and for allegedly not remaining in his mother’s home, when our client testified that his mother would not allow him into the home. The decision transcends this individual case and bolsters the Legal Aid Society’s efforts to gain relief for all youth clients who were unlawfully re-incarcerated.
This past April, OCFS published emergency regulations for ACS in response to Legal Aid’s litigation and those rules are in the process of being promulgated. OCFS also agreed with Legal Aid and the Court on this issue.