Professional Misconduct against Juveniles in Correctional Treatment Settings

Lee Michael Johnson

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317521853
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

A significant barrier to successful juvenile intervention is misconduct committed against juveniles by the persons employed to help them. Professional Misconduct with Juveniles explores the nature of employee-on-youth misconduct, its extent, its consequences, factors that increase its occurrence, and potential solutions to the problem. Obviously, employee-on-youth misconduct interferes with the effective treatment of delinquent and at-risk youth, but it also harms the agency as a whole and creates a poor working environment for all employees. Professional Misconduct with Juveniles offers a practical, theory-based approach to preventing or stopping such exploitation of vulnerable young men and women so that we can focus on effective approaches to rehabilitation, deterrence, and public safety.

Chapter 1

Introduction

In the search for improvements to the juvenile correctional system, much attention is given to the development of more effective approaches and techniques concerning rehabilitation, deterrence, and public safety. However, the pursuit of better corrections also involves the recognition and removal of barriers to achieving correctional goals that arise during daily practice. One such barrier is misconduct committed against juveniles by the persons employed to protect and help them. Obviously, misconduct interferes with the effective treatment of delinquent and at-risk youth, but it also harms the agency as a whole and creates a poor working environment for all employees.

In an earlier review of the literature, Powers, Mooney, and Nunno (1990) referred to institutional child maltreatment as a “national dilemma.” Many children are placed in institutions because their home environments lack necessary care, safety, and treatment. If left in the home, they remain vulnerable to abuse and neglect. Settings such as long-term treatment facilities, foster and group homes, temporary shelters, and secure correctional facilities are operated to treat and protect youth, so it seems obvious that they would be preferable to troubled home environments. However, sometimes the opposite is true (Hobbs, Hobbs, & Wynne, 1999). Child custody institutions themselves carry the potential to place children at risk of maltreatment, as facilities are often isolated from public view and children in custody depend heavily upon the institution’s employees to represent their interests (Powers, Mooney, & Nunno, 1990). Fortunately, the potential for institutional child mal-treatment can be neutralized with effective policies and practices. Recognizing that juvenile corrections facilities carry the potential for institutional maltreatment is not the same as claiming that the system is, by nature, abusive and neglectful.

It is difficult to estimate just how often professional misconduct against juveniles occurs in correctional treatment settings. The available evidence does not suggest that it occurs very often, but neither does it suggest that it is very rare. Perhaps it is safe to claim that it happens far too often, and much more can be done to reduce it. Further, the severity of a problem behavior is not just determined by how often it occurs. The consequences of such behavior must also be assessed. As administrators realize, just one case of misconduct can cause major and extensive damage. Thus, while professional misconduct against youth does not appear to be an “epidemic,” it continues to be a problem that requires better understanding and solutions.

1.1 Consequences of Professional Misconduct Against Youth

Professional misconduct against youth can bring about serious harm not only to program youth and their families, but to employees and agencies as well (Roush, 2008). The harm may extend further into the wider community, which may be affected by the future offending of troubled youth who received poor treatment, as well as by tax dollars spent by public agencies to recover from cases of misconduct. Since staff members are legally bound to protect residents’ rights to safety and security, they play an important role in civil litigation involving harm done to youth. It takes a great deal of time, effort, money, and energy to manage an agency after an incident of serious employee misconduct, especially high profile cases (Roush, 2008). Lawsuits, tension, conflict, and overall bad morale create a poor treatment milieu and disrupt the delivery of services (Bloom, 1993).

The safety of youth is a primary responsibility of institutions that house or treat juvenile offenders. Child abuse in correctional facilities constitutes a failure by the juvenile justice system to protect youth (Davidson-Arad, 2005). That they have broken the law and some are violent themselves does not mean that these youths are less deserving of protection and safety than others. In fact, since many are also victims of crime (domestic abuse for example), they may be more vulnerable to the damaging effects of victimization; safety from harm will be essential to their healing and behavioral change (Davidson-Arad, 2005). Though they largely function and are viewed as punitive, secure juvenile correctional facilities are just as responsible for the protection of their residents as residential treatment centers, group homes, and institutional foster care.

Victimization by employees or peers undermines youths’ chances of changing their thinking and behavior to become productive members of society. Thus, one of the possible long-term consequences of professional misconduct against youth is increased victimization in the community of institutionalized youth who received inadequate treatment. Many have histories of being abused and neglected, and the various forms of institutional victimization they experience likely exacerbate the psychological damage caused by earlier victimization (Davidson-Arad, 2005). Abusive behaviors on the part of employees, of course, directly bring harm to the youth, while neglect puts them in danger of harm (e.g. failing to protect children from assault or theft by peers and failing to attend to their health and hygiene needs). Failing to prevent youth-on-youth victimization does a disservice to both the victim and offender. An environment that tolerates bullying, for instance, can result in serious physical and psychological harm to victims, but it harms the perpetrators of bullying as well. If a child is allowed to bully, his or her orientation toward antisocial behavior is strengthened—the exact opposite of that which is intended by offender treatment (Browne & Falshaw, 1996).

Institutional re-victimization has particular implications for girls. Most system-involved girls have histories of victimization, often sexual. Acoca (1998, p. 562) writes “the abuses that a majority of girl offenders have experienced in their homes, in their schools, or on the streets are often mirrored and compounded by injuries they later receive within the juvenile justice system.” These injuries may have a developmental impact beyond the girls themselves. If they are pregnant or have children, institutional maltreatment will also damage their capacity to raise their children to become healthy, productive, law-abiding citizens (Acoca, 1998).

As will be discussed later, many acts of misconduct represent a failure to maintain proper relationships with youth. Violating professional boundaries threatens harm to both the employee and the child. There might be some short-term gains; for example, youth may enjoy the attention given by over-involved staff or a distant staff member may avoid manipulation by youth, but boundary violations foster employee-youth relationships that inhibit effective treatment and management. A loss of objectivity and impaired judgment lead employees who are too close with or distant from youth in their care to make poor decisions. Employees with entangled boundaries may make youth increasingly dependent upon them and inhibit development of autonomy. Those with rigid boundaries may be less effective at building rapport with youth and instilling trust and a sense of self-worth in them (Davidson, 2004).

1.2 Purpose of the Book

This book covers current knowledge on 1) the nature of professional misconduct against youth, 2) its extent, 3) factors that increase its occurrence, and 4) solutions to the problem. Special emphasis is placed upon providing solutions to the problem. In fact, Chapter 5: Solutions is by far the largest chapter. Also, offered in the final chapter are suggestions for further study and action. The book is the result of an extensive review and analysis of recent literature on professional misconduct against institutionalized youth. To ensure quality, sources were restricted to peer-reviewed journal articles or book chapters, reputable professional periodicals, and official government reports. Further, the book explores the problem on a global level, drawing from studies conducted in multiple countries. Very little is published on professional misconduct in secure juvenile correctional facilities and residential or day treatment centers for delinquent youth. Thus, the analysis is extended to similar child placement settings such as shelters, group homes, and institutional foster care as they too often care for delinquent or at-risk youth. However, the information drawn from studies of related child care settings is used to address the problem of misconduct against youth placed in correctional settings specifically.

The book was largely written with the intention to provide assistance to current and future juvenile correctional staff, administrators, and practitioners, though it is hoped that it will reach a wider audience including political leaders, activists, and concerned citizens in general. Acknowledged in the book (especially in the final chapter) is that the problem cannot be solved without help from outside the agencies and organizations treating troubled youth—from child advocacy organizations to governmental leaders and the general public, for example. However, content throughout the book focuses mainly on information helpful to organizational policy and procedure as well as daily practice. In other words, it focuses mostly on what professionals working in the field can do to understand and solve the problem of professional misconduct against youth. Then again, the book does not serve as a training or “how to” manual. Rather, it is designed to fulfill its mission through educating students about the issue and provide a service to those in the field by consolidating knowledge available from a wide variety of qualified sources. The book is intended to help inform current and future professionals while allowing them to make their own judgments regarding anti-misconduct policies, procedures, and practice.

Chapter 2

The Nature of Misconduct

Defining professional misconduct against youth is important for policy and practice, not just for conceptual clarification. This includes defining particular types of misconduct. For example, the issue of what constitutes “abuse” has important implications for how to identify and respond to the abuse of children in placements (Kendrick, 1998). Professionals may be unsure about which acts by their colleagues constitute abuse and should be reported (Horwath, 2000). Child maltreatment in institutions can be similar to maltreatment that takes place in the home. It can take a variety of forms such as inadequate supervision, prolonged isolation, minor to very serious physical injury, involvement in sexual activities, violations of governmental regulations (denying home visits, for example), and inadequate treatment programs. However, with such a wide range of possibilities, professionals widely disagree over which acts constitute institutional child maltreatment and should therefore be reported to authorities and counted in incidence statistics (Powers, Mooney, & Nunno, 1990). Though difficult to develop, a valid definition of professional misconduct against juveniles in correctional treatment settings is needed for policy, practice, research, and theory.

2.1 Philosophical Issues

“Misconduct,” specifically with respect to behavior committed by employees and volunteers working in juvenile correctional settings, should be defined and distinguished from related and conceptually overlapping offensive behaviors that take place in such settings. The meaning of the term is very subjective. It suggests different kinds of behaviors to different people and may vary according to one’s position within or outside of an organization, goals/interests, political orientation, or analytic perspective. A useful, more neutral definition should be inclusive enough to cover the different forms of unethical and immoral behaviors that clearly threaten youth, yet exclusive enough to avoid convolution and too much conceptual repetition. While many of the behaviors constituting misconduct also fall under terms such as “rule breaking,” “neglect,” “abuse,” and “crime,” these are not terms synonymous with “misconduct.” For the sake of focus this book specifically addresses misconduct committed by employees or volunteers against youth, though it is understood that other forms of misconduct are also harmful and interfere with an agency’s efforts to treat youth.

Misconduct cannot be defined simply as the violation of institutional rules. First, “misconduct” conveys a sense of severity, and many rule violations are minor. Further, some rule violations do not intrinsically harm youth—they may defy administrative or supervisory preferences (strict dress codes for example). Thus, an objective definition of misconduct cannot be one that includes all behaviors deemed offensive by authorities. In fact, we must be careful to avoid a definition biased toward behavior committed by subordinate individuals. Misconduct can refer to behavior committed by higher status persons, including even CEOs and politicians (Skinner, 2003). Misconduct may also be committed by collective units such as departments and administrative units and exist in organizational practices. Asbridge (2007), for example, refers to a case in which it was discovered that a county juvenile detention center superintendent mishandled reports of sexual abuse from within his facility. Further, employee misconduct should not be an issue limited to residential environments, as misconduct can certainly occur in community correctional settings such as day treatment and probations. However, an objective definition of misconduct also cannot be one that includes all behaviors deemed offensive by those who challenge authority. Administrating on behalf of interests inconsistent with others’ interests, including elite and self-interests, do not necessarily constitute misconduct. For example, an observer should not accuse administrators of misconduct simply because they employ a treatment mode not preferred by the observer.

Even if a clear, conceptually satisfying definition of misconduct can be established, decisions must still be made regarding sets of specific behaviors to which the definition may be applied. It will be easy to present some actions as misconduct. Physically aggressive behaviors, coercive and manipulative behaviors of a sexual nature, neglect of basic needs, verbal abuse, and theft, for example, provide clearer examples of misconduct. However, Groze (1990) refers to other forms of inappropriate treatment that are unique to institutional settings. These are “harm or threatened harm to a child’s health or welfare which is caused by any violation of statutes, regulations, written rules, procedures, directives, or accepted professional standards and practices which is not otherwise classified to be abuse or neglect but which results in or creates the risk of injury to a child” (p. 231). These other possible forms of misconduct may require more explanation. The literature mentions several other forms of harmful behaviors which also may be considered professional misconduct against youth.

Recent literature often cites Gil’s (1982, cited in Kendrick, 1998) institutional abuse typology: 1) physical and sexual, 2) program, and 3) system. Physical and sexual abuse involve actions which could occur in family situations, except they are perpetrated by a professional care-giver. Program abuse occurs when programming does not meet acceptable standards, policies are extreme or unfair, and child guidance techniques are harsh, inhumane, or unusual. Program abuse includes over-medication (using medication to control youth), unwarranted use of restraint and isolation, and harsh discipline. Isolation in control rooms or “pin-down units” may resemble conditions of “solitary confinement” in adult prisons. System abuse is the most difficult type to define, identify, and correct, perhaps because it involves multiple agencies. Large, complicated childcare systems with very limited resources are incapable of guaranteeing proper care to all children. System abuse may be more identifiable by its result—primarily that some children “drift” through several placements, which denies them the stability and continuity needed to develop (Gil, 1982, cited in Kendrick, 1998). By the time they leave care, system-abused youth will be ill prepared to function in mainstream society, lacking educational qualifications and employment and housing opportunities, for example (Kendrick, 1998).

Gil’s typology, especially in terms of system abuse, suggests that definitions of misconduct—assuming that some forms of maltreatment can be considered misconduct—cannot be restricted to isolated individual action and frontline staff behavior. Lerman (1994) points out that some legal definitions of abuse and neglect include the initial or continued placement of children into facilities and programs inappropriate to their needs with knowledge that such placements can harm the child. Applying this kind of definition, juvenile courts that fail to place adjudicated youth in “the least restrictive alternative” (e.g. overusing incarceration which is supposed to be a “last resort alternative”) may be accused of child maltreatment. Thus, it is possible for powerful actors such as judges and child welfare authorities to commit maltreatment.

However, the purpose here is to define “misconduct.” Abuse, neglect, and maltreatment are not terms synonymous with misconduct. When professionals directly abuse or neglect youth, they are indeed engaging in behavioral misconduct. But are all forms of maltreatment “misconduct”? Abusive and neglectful conditions are not always traceable to the abusive and neglectful actions of individual or group actors. Definitions of the term misconduct may vary but it is probably safe to say that it generally refers to distinct intentional decisions and behaviors enacted with either ill regard or disregard for rules, laws, or ethical principles that protect the welfare of others. It is possible that some of the unacceptable conditions experienced by youth in placement are not due to intentional harmful actions. In fact, many if not most administrators and staff who run or work in problem facilities are probably well-meaning and give their best effort. Larger social systems are often responsible for the maltreatment of youth, which is just as bad a problem as individual level maltreatment, but claiming that “the system” engages in misconduct would be committing a reification error. One cannot speak of an abstract social system as if it were as concrete as a human individual or small group. Thus, to make a good argument that pervasive conditions experienced by youth are due to professional misconduct, one should identify the exact decisions and/or actions of individuals acting alone or in...