Martarella v. Kelley

The rapid urbanization of the United States in this century and the heavy influx of the poor to the cities in the last two decades have produced a numerous class of children whose conduct, although not criminal in character or legal designation, results in their incarceration.

Robert Martarella and his fellow plaintiffs 1 are members of that group —alleged or adjudicated to be “Persons In Need of Supervision” (PINS) pursuant to § 732 of the Family Court Act of New York (The Act). They bring this civil rights action for a declaration that their temporary detention in the “maximum security” facilities, — Spofford, Manida and Zerega, juvenile centers operated by the City of New York— deprives them of due process and equal protection and constitutes cruel and unusual punishment under the conditions prevailing at those institutions. 2

*578 The plaintiffs moved for preliminary injunctive relief. Pursuant to Rule 65 (a) (2), Fed.R.Civ.Pr., the trial of the action was consolidated with the hearing of the application. 3

A “Person In Need of Supervision” is defined in § 712(b) of the Act as “a male less than sixteen years of age and a female less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority.”

The boys at Spofford range in age from 7 through 15; the girls at Manida and Zerega from 7 through 17.

The Family Court Judges are authorized, by § 739 of the Act, to direct that a PINS be detained if “(a) there is a substantial probability that he will not appear in court on the return date; or (b) there is a serious risk that he may before the return date do an act which if committed by an adult would constitute a crime.”

The Presiding Justices of the Appellate Division are responsible for the designation of appropriate detention centers for PINS.

The Director of the Office of Probation was, at the time this suit was in-instituted, responsible for the administration and operation of the centers. In November 1971, the supervision of the centers was transferred to the Department of Social Services of the City of New York, and Jule M. Sugarman, Commissioner of Social Services, has been added as a defendant.

The injunctive relief sought by the plaintiffs is to prevent the Family Court Judges from remanding PINS to the centers, to order the Presiding Justices of the Appellate Division to designate non-secure facilities which comply with New York law and the Federal Constitution as to the care and treatment of children in custody, and to order the administrator of the centers to close *579 Manida and Zerega permanently, and Spofford until it is made “safe, sanitary and decent for its inmates.”

They also move for determination of the case as a class action.

Spofford, Manida and Zerega (“the centers”, except where reference is made to a specific facility) are institutions at which PINS and juvenile delinquents are, (on what is theoretically termed a “temporary” basis), detained together pending the permanent disposition of their cases by long term custody or otherwise. The term “theoretically” must be emphasized because in a significant number of cases, as we shall see below, the “temporary” nature of the detention is lengthened to as much as 100 days or more.

Generally speaking, children who have been adjudicated as PINS are truants, or runaways, or have been ungovernable at home. The acts for which they may be brought before a court, detained at the centers and thereafter held in custody for a term would not constitute crimes if committed by an adult.

The acts committed by juvenile delinquents (JDs) are criminal in character (in contrast to the acts of PINS). A JD is defined by § 712(a) of the Act as “a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime”.

Plaintiffs’ major contentions may be summarized as follows:

(1) The incarceration of non-criminal children in maximum security detention under conditions which plaintiffs describe as punitive, hazardous and unhealthy, and in the absence of rehabilitative treatment constitutes cruel and unusual punishment and a violation of due process under the Eighth and Fourteenth Amendments respectively.

(2) Classifying and housing PINS together with juvenile delinquents (JDs) (rather than with neglected children) for purposes of temporary detention is arbitrary and capricious and violates the equal protection clause.

The defendants deny that the conditions at the centers are punitive or (with exceptions) hazardous or unhealthy, and assert that the program provided for the plaintiff class provides treatment and rehabilitation to the extent possible in the context of temporary detention. Consequently, they assert that no cruel and unusual punishment or deprivation of due process exists. As to the issue of equal protection, they claim that housing of PINS with JDs is a rational and professionally accepted method of classification for temporary detention, so that no constitutional violation exists.

Finally, defendants argue that the court lacks jurisdiction and that in any event, since the placement of each child involves different factors and circumstances, the case should not be declared a class action under Rule 23, Fed.R.Civ.P.

Before we commence an exploration of the facts and the questions of law which they present, it is essential that the issues be focused. The plaintiffs do not challenge the constitutionality of the Family Court Act or the authority of Family Court judges to remove a non-delinquent child from his home on proper grounds. They do not contest the propriety of confining non-delinquent children in any secure setting. The issue they raise is limited to whether PINS may constitutionally be confined in the three named detention centers: Manida, Zerega and Spofford, and whether they may be held in custody in the same facilities as juvenile delinquents.

The Centers

On July 17th, 1970, the Appellate Divisions of the New York Supreme Court ordered an inquiry into the conditions, maintenance and management of Spofford, Manida and Zerega. Joseph Stone, Judge of the Criminal Court of New York City, Robert K. Ruskin, Commissioner of Investigation of the City, and Donald H. Goff, General Secretary of the Correctional Association of New York, were named as panel members. Their exhaustive and authoritative re *580 port, issued January 20th, 1971, commonly known as the Stone Report, states at its outset:

“The history of New York City’s juvenile detention centers is a history of dead-end studies and investigations. Although many reports have been written and inadequacies, abuses and brutalities have been spotlighted, meaningful improvement has not been achieved.”

There follows a description of nearly a score of inquiries (commencing with investigation of earlier facilities as far back as 1906) cataloguing countless deficiencies, but ending constantly in the frustration which has brought the constitutionality of those conditions before this court. The Stone Report recommended that Manida and Zerega be closed and that Spofford be used temporarily only for children who require maximum security detention. A contemporaneous study, “Juvenile Detention Problems in New York City,” by the Citizens’ Committee for Children of New York, Inc., recommended that “all the buildings now used for detention purposes should be closed or converted with reasonable speed.”

We will refer hereafter to other relevant findings and recommendations of the Stone and Citizens’ Committee Reports. We proceed to a resume of the facts as to the present physical conditions at the shelters, the restraints imposed on the children, and whether rehabilitative treatment is furnished them.

Physical Facilities and Restraints

Spofford: Spofford is “secure” not only from the outside world, but internally as well. The building is surrounded by a high wall. Although individual sleeping rooms are left open at night unless the particular child poses a risk to himself or others, the children (boys) are otherwise locked in their dormitories, recreation rooms or classrooms (Stipulation No. 2 and admitted allegations of Par. 20A (1) of the complaint). Each corridor of the building that leads to the dormitories, classrooms, dining halls or offices has metal doors at each end that are locked at all times. An electronically locked metal door controls movement in and out of the buildings. The windows are secured from inside by a screen made of institutional netting. Each screen is secured to the window by a frame which is hooked to the window frame, (Stipulation No. 2).

When boys arrive at Spofford their personal clothing is taken from them and they are issued uniforms of blue jeans and T-shirts on whose fronts is an institutional legend (admitted allegations of Par. 20A(6) of the complaint).

Manida: Manida is also surrounded by a high wall. The girls there are under lock and key: specifically, the doors to each unit, which contains an “open” dormitory, day room and bathroom, are locked; the doors to each corridor of the building and the doors to the stairway are locked at all times. (Stipulation No. 3 and admitted allegations of Par. 20B (1) and (3) of the complaint.)

Zerega: The girls at Zerega are confined to prefabricated metal buildings. (Stipulation No. 4; admitted allegations of Par. 20C(1) of the complaint; Stone Report p. 30). Like the other centers, Zerega is sui'rounded by a high wall. The buildings contain a dormitory and a room that serves as a schoolroom and recreation center.

The most comprehensive description of the physical characteristics of the centers is found in the Stone Report. 4

*581 Spofford is located on a four-acre tract in the Southeast Bronx. Completed in 1958, it includes dormitories, schoolrooms, gymnasium, swimming pool, conference rooms and a room for religious purposes, infirmary, cafeteria, library and other miscellaneous supporting facilities. There are outdoor play areas for softball, shuffleboard, paddle tennis, basketball, handball and volleyball. In spite of these virtues, the Stone Report states that the facility is “fraught with problems related both to architectural layout and to maintenance.” For example, it is V- of a mile from one end of the structure to the other; the building is “poorly designed for its functional purpose”; space for receiving children is inadequate so that searching is often conducted in the toilet facilities; there is lack of sufficient area for visitation; the school is divided among three separate floors, creating “traffic problems”; lighting is “generally inadequate”, the rooms are often cold in winter, and the fire alarm system — at least at the date of the report — was in disrepair.

Manida: This center is situated on a two-acre tract in the Southeast Bronx. There are three buildings: a main three-story structure; a two-story cottage, and a one-story attached residence. There is an outdoor volleyball court and baseball diamond. The main building was constructed in 1904 as a monastery, and was renovated in 1954. The dining room in the basement and dormitories on the second and third floors were not renovated and, as the Stone Report picturesquely describes them, “survive as remnants of the monastic era.” The gym is “dilapidated”. The cottage is no longer in use. As far back as 1963, the Federal Department of H.E.W. reported to the director that Manida was, as the Stone Commission reports the findings, “unsuitable for the detention care of children, that no remodelling or repair could make it suitable, and that it should be replaced ...” and “because of lack of space and general layout, a detention program could not be provided.” The Stone Commission found that “since 1963 the situation has not improved” and that its serious state of disrepair was such that “Physically, Manida is depressing.” To compound the situation, “The deplorable condition of Manida was exacerbated by a fire on November 14th, 1970 which destroyed two dormitories. All of the children are now being housed in the remaining dormitories which adds to the problems of the institution.”

The defendants have stipulated that Manida “is inappropriate for the detention of children.” (Stipulation No. 6 and admitted allegations of Par. 25B(4) of the complaint).

Zerega: Zerega was constructed in 1962 as a temporary facility and is located on a two-acre “marshy” tract in the Central East Bronx. It consists of eight buildings which the Stone Report (and the complaint) describe as “Quonset huts,” and the defendants call “prefabricated metal structures.” There is an outdoor skating rink, basketball court and shuffleboard court. The Stone Report states (p. 30):

“The buildings are sinking. This becomes particularly apparent after periods of heavy rainfall. The settling of the buildings causes cracks in the hot water pipes suspended from the ceilings, which could result in serious injury if a pipe should burst. Leaks in the roof are common ...”

The buildings are “hot in the summer and cold in the winter” and “there are insufficient waiting room facilities for visitors which discourages visiting during inclement weather.”

As of the date of the Report (January 1971) it was “contemplated that the facility will have to be abandoned.” This was still the case at the time of trial.

It will be noted that all of the centers are located in the East Bronx. Since they are the only detention centers in the city for PINS, their location in one corner of the metropolis makes it a long journey for many family visitors who come from Queens, Brooklyn and Staten Island, and acts to limit the actual number of visits which the children receive. *582 (Admitted allegations of Par. 31(b) of the complaint).

The number of boys in custody at Spofford or of girls at Manida and Zerega has varied substantially at different times, but seems to show a declining trend as plans for new or substitute facilities, which we describe below, come into fruition.

Spofford has a capacity of 300, and there were times in the past when it was seriously overcrowded. Those days seem to be over. In May of 1971 the population ranged from a low of 183 to a high of 221; while in May 1972, the spread was between 110 and 173. (Monthly Population Report May 1972, by Director of Detention Services; Human Resources Administration, Institutional Services).

The centers’ total capacity for girls is 170 (idem). In May of 1971, 93 were at Manida and Zerega, as compared to 83 in May of 1972 (idem). 5

Although the centers were established and are conducted solely for temporary detention until final disposition of a child’s case, the agonizing difficulty of permanently placing some children elsewhere results in many stays which are anything but temporary.

The average time spent at the centers as of the time of trial was only 12.06 days for girls and 16.81 for boys (Tr. 393); but unhappily, many remain much longer. For example, plaintiff Martarella was at Spofford for six months (Tr. 7), and William Ocean, a defense witness, for seven months (Tr. 214). John Wallace, Director of New York City Probation Department, testified that in 1969, when the total population of the centers was clearly larger than it is today — due to creditable efforts since then by the Family Court to reduce the number of children remanded to secure detention and to speed up the permanent placement of those at the centers — there were 142 children at one time who had been in custody for more than 30 days, and 30 or 40 of those had been in custody for over 100 days. In May of 1971, 44 children had been detained over 30 days, and in *583 May of 1972 the number was still 34, of whom one had been in custody for 115 days, three more than 90 days, seven 80 days or more, four over 60 days, nine more than 50 days, three more than 40 days, and the remainder over 30.

The difficulty of permanent placement of PINS in such cases is poignantly illustrated by two examples given in the recent report of the Committee on Mental Health Services Inside and Outside the Family Court in the City of New York (1972), appointed by the Presiding Justices of the First and Second Appellate Divisions of the New York State Supreme Court (defendants here) and conducted under the chairmanship of Hon. Justine Wise Polier (a defendant here) entitled “Juvenile Justice Confounded: Pretensions and Realities of Treatment Services” (at pp. 29-30):

“Donna C, found to be in need of supervision, was placed in the training school system [i. e., a state facility] after only a few efforts to secure private placement. Diagnosis: ‘Passive, aggressive personality with explosive features.’ The case summary reports, ‘The original psychiatric and psychological reports actually spelled this child’s doom relative to any private agency setting — note the statement, explosive features. Such a child is not acceptable to any private agency.”

and

“Amy J, a fourteen-year-old diabetic, spent ten months at Juvenile Center while the Court sought placement for her that would provide medical and psychiatric care. After she was rejected by two agencies because of ‘lack of motivation, low academic achievement and a pattern of absconding’ and by a third because of her medical condition, she was placed in the training school system.”

While these stories of misery explain the causes of many long term detentions, they simultaneously confirm their existence and the probability of their continuance in the foreseeable future. Such long term confinement of significant numbers of children in a setting programmed solely for temporary detention is directly relevant to the question whether the “treatment” they receive is adequate as a matter of due process or under the Eighth Amendment.

Restraints and Discipline

In addition to being locked institutions (internally and externally) whose male “inmates” must wear uniform clothing, there are other characteristics which the centers share with penal institutions. For example, according to Robert Martarella’s uncontested testimony, children are required to walk in line from place to place without talking, and are “hit” or have a smoking break taken away if they get out of line. Knives are not generally furnished at meals. Homosexuality, both forced and consensual, exists in both girls’ and boys’ centers as what all parties appear to agree is an inevitable concomitant of incarceration.

The testimony of Mel Rivers, President of The Fortune Society, an organization dedicated to prison reform and the assistance of released prisoners, compared conditions in prison and Spofford. Rivers, who was once in custody at Spofford for a week in 1958, has also been confined in a State training school, a county jail, and for three years at Com-stock Prison, his last term ending nine years ago. A year ago he visited Spofford as a consultant once a week for seven to ten weeks for “rap sessions” with the boys in custody, and made other visits as a member of a committee of the Stone Commission. When asked (Tr. p. 52):

“In what way did you find that Spofford Juvenile Center is like, say, a county jail for adults or prison for adults?”

he replied (Tr. p. 53):

“A Well, it is operated predominantly under the same type of a system, a count system, a march system. The counting probably in Spofford is done more silently than it is done in an adult facility. It is probably done by bed-checks, but it is still a count.

*584 THE COURT: You mean to be sure everybody is there ?

THE WITNESS: Yes, to be sure everybody is there.

The type of regimentation, to do this, to do that, that type of situation, the locking in, the inability to be really part of what is going on outside.

In juvenile institutions I realize you get out in the yard to play some ball, whereas in an adult facility you don’t. But in the final analysis you are back inside that enclosure. The windows are thick. There is a locked-in type of a situation.

In juvenile institutions you have like a dormitory attached to a day room, and a good portion of your time is spend in the day room playing cards or looking at TV.

Q Is this how it is up at Spofford ?

A At Spofford. And in county jails you have a day room that is attached to a prison corridor, like cells, and predominantly you spend your day in the day room playing cards and watching TV. So it is really somewhat the same system that it is governed by and run by. It is just labelled different, juvenile institutions or adolescent or adult facilities.”

Dr. Esther Rothman, a psychologist, is the principal of the Livingston School for Girls, a special high school run by the New York City Board of Education for very aggressive girls. She was a visiting member of the detention committee of the Stone Commission and of the task force of the Citizens’ Committee for Children’s committee on probation, which prepared the 1971 report on the centers referred to earlier. She has visited all the centers on a number of occasions over a period of thirteen years, the last time only a few months before the trial. She testified (Tr. p. 71):

“ . . . the tone of all the facilities is one of punishment and getting even with kids and teaching them a lesson, and I never felt that there was any real treatment or any real approach to helping children.

Q How would you describe Spofford ?

A In just that way, as a penal institution.”

(Tr. p. 72)

“Q In your professional opinion what would you say were some of the effects of secure detention on non-delinquent children ?

A It is like asking me what is the effect of a concentration camp.”

In Dr. Rothman’s view a child does not see running away from home or truancy as harming any one else, and “ . . it is punitive when you are locked up some place having done nothing.” (Tr. p. 73, 13ff).

The only expert witness for the defense who had visited any of the centers was Dr. Gideon Seaman, who made a one-day trip to Spofford and Manida for the purpose of testifying in this case (Tr. p. 186), and who in the course of his professional work has interviewed about a dozen children who had been in custody at one of the centers. He did not dispute the description of conditions at the centers, although, as indicated below, he differed markedly with plaintiffs’ witnesses as to the phychological effect of the conditions and whether they constituted treatment that was professionally valid.

The punitive nature of custody at the centers is almost necessarily effected by the fact that it houses and mixes juvenile delinquents and PINS. While, as we shall see, the defendants assert that it is professionally and legally justified to treat the two classes in groups based upon their individual needs rather than their labels, nevertheless the necessities of the situation seem to require the enforcement of greater discipline when juvenile delinquents are included than would otherwise be the case. The JDs are, it must be remembered, charged with acts which would, except for the age of the actors, be crimes. The delinquencies range from the most minor to homicide and rape. While it is true that even a child who has committed one of these grievous acts may behave properly at the *585 center, and although many PINS are by definition “ungovernable”, yet it is a reasonable inference that the presence of serious offenders within a group intensifies the imposition of discipline and restraint — if for no other reasons than those of security and of safety to staff personnel and other children. The result is that the most difficult child easily becomes the lowest common denominator for disciplinary purposes. In addition, as the defendants admit, “ . . . discipline is often enforced against many in a group for the transgressions of only one child.” (Admitted allegations of Par. 30(d) of the complaint.)

The Stone Commission found that “many children who did not require secure detention were being detained in the completely locked, prison-like (sic) maximum-security facility at Spofford. This practice is particularly shocking and offensive in the case of younger children. But since adequate facilities were not available for all children who simply needed a place to live pending disposition by the court, there was no alternative but to remand them to secure detention facility.” (At 21-2)

Treatment — General Observations

What we have said, although thS . record would justify more, is sufficient ; to establish that, however benign the purposes for which members of the plaintiff class are held in custody, and what- ' ever the sad necessities which prompt their detention, they are held in penal condition. 6 Where the State, as parens patriae, imposes such detention, it can meet the Constitution’s requirement ofA, duo process and prohibition of cruel and unusual punishment if, and only if, it furnishes adequate treatment to the detainee. 7

None of the defendants quarrel with that proposition. The solo issue is whether the program for children at the centers measures up to constitutional standards of treatment.

We turn, therefore, to the facts relating to this critical subject: a subject as to which conclusions are more difficult to draw than as to those we have so far discussed. For one thing, the constitutional standards themselves are particularly difficult to assay. While decisions which we shall shortly review clearly pronounce the constitutional requirement of “treatment” as a quid pro quo for the exercise of the State’s rights as parens patriae, they offer little guidance as to standards for determining the adequacy of treatment. Furthermore, as is perhaps to be expected in cases such as this, and in relation to a subject in which the outline of professional, like legal, standards is just emerging, the opinions of experts for the respective parties differ sharply as to the psychological and rehabilitative effect of the actual program at the centers. Finally, there are understandable limitations on the nature of the treatment that can be afforded — at least on an economically justifiable basis — at facilities established and intended for temporary detainees. These limitations may be constitutionally acceptable for those who are in fact temporarily detained but not for those who are actually held for long periods.

Treatment The Program

Expert witnesses for the plaintiffs differed sharply with defense witnesses as *586 to the therapeutic productivity of secure detention, and as to the adequacy of the actual treatment program at the centers; but all of the experts agreed that the beginning of treatment can be provided in temporary detention facilities if the tone of the institution is such as to make a child feel that a staff member is concerned about him, (e. g., Rothman Tr. 81; Greenwood Tr. 462; Schulman Tr. 260), and that the prerequisites for instilling such an attitude in the child are a staff (1) sufficient in numbers (2) adequately trained (3) having good relations with the children and (4) knowledgeable about the child’s problems.

Judged by these standards, children detained for long terms cannot be said to receive treatment from the staff in the constitutional sense. Treatment from the staff of children detained for short terms is at best minimally acceptable. The phrase “from the staff” is deliberately used to emphasize the socio-medical nature of the treatment under discussion, differing as it does from the ordinary concept of “treating” a person kindly, indifferently or meanly. The concept of treatment as a constitutional quid pro quo for the state’s right to detain those not guilty (or accused) of crime — children, the mentally ill, for example, — involves the delivery of therapeutic services — services which must emanate from the staff. Treatment in this sense goes beyond good will and kindness, although those virtues may be indispensible to the success of the therapy. While there have been some episodes of physical mistreatment or abuse of children by staff members at the centers, 8 they appear to be atypical, and the conclusions as to inadequacy of treatment “from the staff” do not imply any lack of good will or effort on the part of staff members in what is clearly a most difficult and demanding assignment. We have in mind rather the following facts:

(1) Sufficiency in Numbers: “Counsellors” are the staff members at a detention center working closest to the child. Defendants’ own expert, Dr. Greenwood, testified (Tr. 429) that a professionally acceptable ratio of counsellors would be 3 counsellors to 24 children during the active day time hours. At Spofford, dormitories with 24 children are assigned 1, or sometimes 2 counsellors. (Testimony of John Wallace, Director of Probation Tr. 380-1).

The “caseworker” acts as a basic link between the center, and the Probation Office at the Family Court, and the position is of extreme importance in providing information as to the child. At the time of trial there were four caseworkers at Spofford to deal with the cases of 135 children. The inadequacy of this number is attested by the fact that there are unfilled openings for 13 caseworkers. The Stone Commission (Report p. 49) found that recruitment and retention of caseworkers for Spofford has been a long term, continuing problem, and there has been a high rate of turnover (Wallace Affidavit pp. 9-10).

The importance of psychiatric facilities for children whose behavior is by definition socially maladjusted is obvious. Diagnosis is critical to determination of appropriate permanent placement of the child, and actual treatment may be necessary during the course of stay: is inevitably necessary in extreme eases such as suicide attempts which have occurred sporadically. 9

At the time of trial Juvenile Center had available only the per diem (part time) services of one psychiatrist (Wal *587 lace Tr. 386-7). Committed to serve a minimum of ten hours weekly, he had served as much as 22.

Although the defendants’ answer (Par. XXIII) contends that, because the centers are short term care facilities, the “psychiatric services provided are necessarily diagnostic rather than therapeutic”, defendants’ answer to interrogatories #7 (which adopted the affidavit statement of Jule Sugarman, Commissioner of Social Services 9/2/71, par. 10(b)(2)), came closer to the mark: “Psychiatric services at the center need to be strengthened. Psychiatrists are necessary to perform both diagnostic evaluations — and to provide short term intensive therapy and crisis intervention for disturbed youths.” Indeed Commissioner Sugarman frankly admitted (Response to interrogatory #13, 10/6/71), that “Psychiatric coverage for the detention centers, based upon the present population (which is not expected to increase) should at a minimum equal two full-time psychiatrists (70 hours per week) with provision for emergency consultation on nights, weekends and holidays (an additional 12-15 hours per month). This should be supplemented by a full time clinical psychologist.” — “The distribution of psychiatric time between treatment and other activities depends upon the problems shown by the population.” It was the Commissioner’s opinion that “a minimum of 50% of the clinical time available should be spent in working and counseling with children, the remainder between diagnosis and planning for difficult cases and working with staff.” 10

Since the transfer of administration of the centers to the Social Services Department, significant efforts have been made to overcome the acknowledged deficiency in psychiatric services. At the request of the court, 11 current figures were furnished which showed (Answer to interrogatory #13 by Wayne Mucci, Director of Operations, Bureau of Institutions & Facilities, Department of Social Services) that by July 1972, psychiatric service available had increased from 13 to 38 hours per week; but, of course, even this creditable improvement falls far short of the Commissioner’s prescription of 70 hours weekly. While, as of July 1972, there were plans to add to the staff one full time psychiatrist (or equivalent) and a clinical psychologist, (there was none on the staff then) these intentions and positions were unfulfilled at that time.

(2) Staff Training: Through no fault of their own, the training of staff members — at least for counsellors, who work most closely with the children, and with whom the children spend markedly more time than with other staff members— appears seriously inadequate for the difficult and specialized assignment of dealing with problem children: Persons in need of supervision.

While counsellors must have had prior experience working “with people”, this need not include experience working with children (Wallace; Tr. 381). The holding of a college degree is not required (Tr. 381). The Stone Commission reported that no minimum educational requirement existed and that there was no formalized training procedure for new counsellors (except an orientation program concerned with the facility) prior to their permanent assignment, normally to supervise a dormitory of 24 children. (Stone Report p. 37). To remedy this deficiency the Commission recommended the creation of a position of training officer who would develop and supervise programs for pre-service and in-service training, (Report p. 43) and The Citizens’ Committee Study also recommended that in-service training be instituted *588 (Tr. 83; Citizens’ Committee Report p. 5). The centers have, to their credit, enlisted the professional guidance of the Play School Association Inc., a private social service agency, to provide courses in training counsellors for children’s recreation activities; but this useful improvement is necessarily limited in scope. It is not intended to and does not remedy the deficiencies in training counsellors to deal with children on an overall basis.

Defendants’ expert, Dr. Greenwood, testified that — especially where the ratio of counsellors to children was as low as it is at the centers- — counsellors should have training in basic psychology of child adolescence (Tr. 425) to enable them to answer such questions as “What are the intellectual capacities of these kids? Do these kids learn like other kids? What are (sic) their social structure? What past experiences have interfered with their level of growing up?” He agreed that they needed “specialized training and experience in dealing with behavioral problem children or emotionally disturbed children”. (Tr. 426) But the counsellors receive no such training. Nor is there available an in-service training program, which Dr. Greenwood (Tr. 441) recommended as had the Stone Commission and Citizens’ Committee.

(3) Relations between staff and children and (4) Staff knowledge of the children’s problems:

The adequacy of relations between members of the staff and the children is a function not only of staff numbers and training, but availability of information about the child, and of communication between staff members who serve a child.

Experts for both parties agreed that a satisfactory and close relationship to an adult (staff) member is critical to the success of any detention center treatment program. As Dr. Greenwood, testifying for the defense, put it (Tr. 431):

“But you see, he [the child] has to go through a process, if you want to call it detoxifying, his parents and finding another adult who believes in him, who sees him as a human being and doesn’t say, ‘Get the-out of here, I don’t want you around, you are a nuisance’ and so on. He finds some one who says ‘Yes, I am interested in you. What can I do to help you ? ’ ”

John Wallace, Director of Probation (and a defense witness) agreed that the function of a counsellor 12 is intended to be more than merely custodial — comparable to that of a summer camp counsellor for a camper. He described one of the difficulties in achieving the objective as:

“The thing that we have on kids, and I think we have to look at it, is the kids’ perception of the staff members. He’s here to see that I ain’t down there. And the kid has to get past that point before he starts talking to the counsellor.”

When asked whether the child’s relationship to the child care worker is an important element in a treatment plan for a child, Dr. Weiner, appearing for the plaintiffs, replied:

“It’s probably the crucial element, the most important element of all.”

But the evidence established that this “crucial element” was generally not provided. Robert Martarella was at Spofford for six months. When questioned:

“What does the counsellor do. What is his job supposed to be?”

He answered:

“Sit there and make sure you don’t try to escape, or he takes you to activities.”

Jill Fein (who had been at Spofford and Manida for 10 days) was asked by the court:

“Do you know what the counsellor is supposed to do, what their job is?”

*589 Her statement was:

“I really don’t know except to make sure that the kids don’t get into fights, but they do that anyway, so —

Dr. Rothman (plaintiffs’ witness) remarked (Tr. 82) that:

“The children don’t feel generally and, of course, there are exceptions, as I say, that they can relate to the people there.”

William Ocean, who spent some months at Spofford, presumably was among the exceptions referred to by Dr. Rothman. He reported that he talked to counsellors and other staff members about his complaints, but the positiveness of his testimony was somewhat diluted in the following exchange on direct examination:

“Q Do you recall when you were at Spofford what was your biggest complaint at Spofford?

A I can’t recall.”

The low ratio of counsellors to children has an inevitable impact on the relationship between them. As Dr. Greenwood put it, the larger the group of children, the “more time [is] devoted to discipline, less time to real activities”. (Tr. 430-1)

A further difficulty exists because of poor intra-staff communication of information relating to the children. Paragraph 28B(4) of the complaint alleges that:

“Communication between counsellors, caseworkers, and the educational, recreational, medical and administrative staff exists only at a minimal level, resulting in confusion and a lack of shared useful information which has a detrimental effect on the children.”

This allegation is not denied by the Defendants’ Answer.

The Stone Commission Report noted the lack of interdepartmental communication or regularly scheduled interdepartmental meetings as well as deficiencies of communications among counsellors themselves (Report p. 40-41).

Another obstacle is the paucity of information which a counsellor receives about a child under his care, as the following exchange indicates: (Tr. 382)

“Q What type of information does each counsellor have about the children on his dormitory? Does he have a full social history of the child who is on his dormitory?

A (By Mr. Wallace) No, he will not have a full social history.

Q Does he have the information that brought him to Family Court, the factual allegations of that petition?

A No, we may not even have it ourselves.”

The counsellor is merely informed of any special behavioral problems of the child and, whether he is an escape risk or a fugitive (Tr. 382-383), and although the counsellor may quickly learn from the grapevine the child’s reason for being at the center, this is hardly a substitute for a cohesive version of the child’s social history, and the facts of the PINS petition against him.

The caseworker’s usefulness is similarly limited. There are apparently no regular case conferences between caseworker and counsellor (Tr. 392). Counsellors do not regularly prepare reports on a child; only as to special incidents (Tr. 384). Indeed, according to the Stone Report, communication between a caseworker and a counsellor is often “totally lacking” and “depends solely on the personalities of the individuals involved”. (Tr. 50) For reasons of confidentiality, psychiatric reports as to the child are given to a caseworker only upon court order. (Stone Report p. 46). Although caseworkers interview parents, they do so only at a parent’s request. (Stone Report p. 47) (Tr. 385) The result of all of these inhibitions is that “Practically all information on a child [secured by a caseworker] must be gleaned through interviewing him”, (Stone Report p. 47) a process which, although necessary and useful, is, of course, of limited value because of the ex parte, subjective and possibly immature presentation by the child.

*590 We have already observed on the deficiencies in psychiatric services, acknowledged by the defendants themselves. It is a reasonable inference that the shortage of psychiatric and psychologist manpower prevents the establishment of meaningful relations between such members of the staff and the children, except; perhaps, with the very limited number of persons for whom there is treatment time.

There is no doubt that the recreational and educational activities at the centers are positive and useful ingredients of the program. Indeed without them life would be intolerably dreary, and the sheer residual detention would clearly constitute the cruel and unusual punishment of a status declared unconstitutional by Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Field trips by bus (470 children went in the summer of 1971 (Tr. 341)), presentation of plays, holding of dances (Tr. 217-18), gym, swimming, yard play, baseball, school, TV and cards are all healthy and useful activities — activities which are also provided in many an adult prison. But neither individually nor collectively do they fulfill society’s promise and obligation to non-criminal children of a right to treatment.

Common Custody of PINS and JDs

As we have earlier indicated persons in need of supervision — the class of plaintiffs in this case — are not charged with committing crimes. Normally their offenses consist of truancy or running away from home. In contrast, Juvenile Delinquents are charged with acts (ranging from minor offenses such as petty larceny to major offenses such as rape and murder) which, if committed by an adult, would be criminal. Yet when a PINS is held in temporary secure detention, he is held in the same institution as a JD. While there is no dispute as to this fundamental fact, there is sharp dispute as to the effect on the child of such common custody, and as to whether the common custody is rationally justified and professionally acceptable.

The statute (Family Court Act § 739), of course, authorizes such custody; but by regulation (18 N.Y.C.R.R. 9.5), neglected, abandoned and destitute children may not be confined in secure detention with JDs. The plaintiffs contend that this distinction between the custodial treatment of a PINS and a neglected child, neither of whom is accused of crime, is an arbitrary classification which violates the Equal Protection clause. The defendants respond that the distinction between the custody arrangements for PINS and neglected children is reasonable, and that the Equal Protection clause does not require that PINS and neglected children be treated identically.

The divergence of the expert testimony and what conclusions are to be drawn from it are illustrated by the following recapitulation:

Dr. Rothman testified (Tr. 79) that it was “very damaging” for girl PINS to be housed with g