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The Honolulu Advertiser
Posted on: Friday, February 10, 2006

ACLU: Protect gays at youth jail

By Ken Kobayashi
Advertiser Courts Writer

American Civil Liberties Union of Hawai'i lawyers will ask a federal judge to order state officials to adopt policies to protect youths from harassment and abuse based on their sexual orientation at the Hawai'i Youth Correctional Facility.

A settlement of a Department of Justice lawsuit alleging serious problems that violate the constitutional rights of juveniles was formally approved yesterday. It calls for state officials to make improvements over the next three years.

But Lois Perrin, ACLU legal director, said yesterday's settlement does not address the abuse of gay, lesbian and transgender juveniles. She said the ACLU will recommend that U.S. District Judge Michael Seabright issue an order dealing with those issues to protect those youths.

Seabright earlier this week found in favor of an ACLU lawsuit against state officials alleging that three youths who were or perceived to be gay, lesbian or transgender teenagers had been harassed and abused at the facility.

The judge found that their constitutional rights to due process were violated, but held off on issuing an injunction against state officials because he did not want the order to conflict with the settlement of the Justice Department lawsuit.

Yesterday, Senior U.S. District Judge Samuel King approved the dismissal of the lawsuit as part of the settlement that calls for the state to correct what the department had called a "state of chaos" at the state's only institution housing juvenile law violators.

The settlement calls for the state to adopt a range of improvements. These include developing policies to identify and treat youths who might harm themselves or commit suicide and to protect youths from abuse by the staff and other teenagers.

The state must comply within three years or risk Justice Department lawyers returning to court to ask that their lawsuit be reinstated.

Attorney General Mark Bennett said the improvements will cost millions of dollars, but he doesn't want to be more specific until he discloses the figures to state lawmakers who must appropriate the money. He said state officials, from Gov. Linda Lingle to the facility managers, are committed to complying with the agreement.

"We would not have agreed to do it unless we believed we could comply," he said.

Assistant U.S. Attorney Harry Yee expressed confidence that federal lawyers won't have to return to court to ask that the lawsuit be reinstated. "If we didn't feel the state would live up to the agreement, we wouldn't have entered into it," he said.

Perrin, however, said three years is too long for the state, but she also expressed doubts that the state would be able to comply.

She said one year should be enough time, especially since state officials were notified of the conditions in August 2003 when the ACLU issued a highly critical report alleging rape, brutality and overcrowding the facility, she said.

Perrin said the state has done "very little" to improve conditions to date. Based on that record, she said "there's no reason to believe that the changes at the HYCF are going to be swift," she said.

The recommendations to Seabright will include policies for the care and treatment of gay, lesbian and transgender youths, including addressing policies such as isolating those youths for days and weeks supposedly for their protection without dealing with the individuals who harassed them.

"I think Judge Seabright's ruling confirms the abuse, harassment and discrimination that these (juveniles) face while they were at HYCF," she said.

"The order is a huge victory not just for these plaintiffs, but for any other (gay, lesbian or transgender youths) at HYCF, now or in the future."

She said it's difficult to determine how many of those youths are at the facility, but said she estimates it would be 5 percent to 10 percent of the population.

Bennett said he believes the settlement addresses the findings made by Seabright, but said it would be premature to say what their arguments will be to the judge.

The facility's population fluctuates. When the Justice Department issued its critical findings six months ago, state officials said the facility had 63 juveniles 51 boys and 12 girls and a staff of about 100.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.