July 31 2013 10:09 AM

Only 14 states, including California, still allow use of pepper spray to discipline young offenders-experts say it has no place in a modern justice system

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Illustration by Adam Vieyra
When young people held in San Diego County's juvenile hall are disciplined with pepper spray, guards at the Kearny Mesa Juvenile Detention Facility ask afterwards if they want a shower.

The best response, says former youth offender Ian Arellano, is "No."

Water reactivates the sting—which then washes down the body, he explains. Instead of affecting just the arms or face, suddenly every pore burns.

"It hurts really bad," says Arellano, who was in and out of juvenile facilities in Southern California at least 10 times between 2007 and 2010. "They say it lasts for an hour, but it lasts all day."

The San Diego County Probation Department operates five detention facilities, with a total average daily population of 800 youths.

Arellano, now 22 and living in southeastern San Diego, says friends currently in juvenile hall tell him nothing has changed—despite assurances last year that the practice would be re-evaluated.

Records obtained by CityBeat through the California Public Records Act (CPRA) back him up.

They suggest that pepper spray—called "OC" (short for "Oleoresin Capsicum")—is deployed daily, sometimes multiple times a day, in the county's juvenile facilities. The records show a total of 414 incidents during 2012. While that represents slightly more than a 10-percent decrease since 2011, it's not clear that county officials are willing to address the problem seriously.

Last year, CityBeat, as part of a fellowship program with the John Jay College Center on Media, Crime and Justice at CUNY, reported that the Probation Department logged 461 OC incidents in 2011, a rate recognized by experts as exceptionally high. Kathleen Edwards, then-chair of the county Juvenile Justice Commission (JJC), the court-appointed body that inspects the facilities annually, agreed to "add questions relating to the use of OC to our inspection template" and to "continue to monitor the situation."

This June, the latest batch of reports was released to the public. While the forms promised by the commission do include numbers of "serious incidents" and a check sheet related to use-of-force, they don't include any new questions related to OC. Only one report even mentioned its use at all; the two commissioners assigned to inspect the East Mesa Juvenile Detention Facility reported that "OC spray is used sparingly, but is not considered controversial."

Members of the Juvenile Justice Commission didn't respond to multiple requests to explain why they failed to fulfill the commitment to include OC questions in inspection reports.

As it happens, neither of the commissioners who inspected the East Mesa Facility has extensive experience in juvenile justice. Commissioner Joan Hiser is a marketing consultant who used to manage advertising for a radio station. The other, Nicole LoCoco, is a recent college graduate and a customer-service representative for the San Diego Padres.

The records obtained by CityBeat show a 30-percent decrease in OC use in East Mesa, but a 22-percent uptick at the Kearny Mesa juvenile hall, the largest of the five detention facilities.

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Had the JJC thoroughly inspected the detention facilities' records, it would've found inconsistencies in procedure among the detention centers, not the least of which was lack of uniformity in care after an OC incident. As Arellano noted, showers are optional at the Kearny Mesa facility, but policies obtained under the CPRA show that showers are mandatory at East Mesa.

Record-keeping at the facilities is also fraught with errors. For example, the required daily logs for the pepper-spray canisters— CityBeat also obtained those under public-records law—included many blanks, discrepancies in the weight of spray cans before and after shifts, undocumented incidents and occasions where guards brought pepper spray home in violation of county policy.

The records also show dozens of accidental discharges of pepper spray by staff. On at least two occasions, the Probation Department launched investigations into whether pepper spray was used in violation of policy. The results of those investigations haven't been made public.

The Probation Department argues that pepper spray is the best way to neutralize violent situations, with less chance for injury to guards and detainees than physical restraint. However, 67 of the incidents in 2011 and 60 of the incidents in 2012 were recorded as unrelated to fights, and the department has refused to provide an accounting of what those incidents involved. According to the department's policies, one such use would be room extractions, where staff pumps OC into a cell to force the detainee into submission.

The argument that OC spray is used "sparingly" and is not "controversial" doesn't fit the facts. Juvenile-justice experts and civil-rights advocates contacted for this story want to know why.

"It's been a year since the Juvenile Justice Commission promised to monitor the use of pepper spray in San Diego's juvenile facilities and, specifically, to include pepper-spray-usage questions in its facility inspections," says Margaret Dooley-Sammuli, a senior policy analyst and incarceration expert with the ACLU of San Diego and Imperial Counties, via email. "CityBeat's findings—that pepper spray was used in San Diego juvenile facilities in 2011 at four times the rate of Los Angeles facilities—deserves a serious response." 

Los Angeles County logged only 91 pepper-spray incidents in juvenile halls in 2011, compared with San Diego's 461.

The suggestion that OC use is not controversial contradicts what's become the prevailing view in the national discussion over juvenile-justice reform. 

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"The use of chemical sprays is a vestige of the bad ol' days," says Barry Krisberg, distinguished senior fellow at UC Berkeley School of Law. "As we progress to an enlightened juvenile-justice system, [the sprays] have no role in that system."

The Council of Juvenile Correctional Administrators (CJCA) notes that only 14 states allow pepper spray in juvenile facilities. Only five states, including California, allow staff to carry pepper-spray canisters, with the rest limiting its use to severe, riot-level emergencies.

In a 2011 report, CJCA said there's a dearth of studies on the safety implications for juveniles. But it added that most juvenile-justice agencies say the argument that pepper-spray use doesn't harm the relationships between staff and youth—which are crucial to successful rehabilitation—is wrong.

"The use of pepper spray within juvenile detention facilities is very controversial," Krisberg says. "Many places don't do it. The [CJCA] basically says it shouldn't be done. There have been a couple of federal courts that have said it's an Eighth Amendment violation. Maybe it's not controversial in parts of California, but it is very controversial around the country."

Many jurisdictions, including Los Angeles County, the California Department of Corrections and Rehabilitation's Division of Juvenile Justice and the Texas Youth Commission have been forced to reduce OC usage amid legal pressure from civil-rights and youth advocates.

In the mid-2000s, Berkeley-based Prison Law Office began negotiations with a previous San Diego County probation chief, which at first seemed promising but didn't seem to result in long-term reform.

"When correctional facilities allow officers to use pepper spray, it becomes the default mechanism for gaining compliance with orders," says Don Specter, who runs Prison Law Office. "Instead of spending the time to talk to the youth or to figure out alternative means or nonviolent ways of gaining compliance, officers will often resort to pepper spray.

"It is absolutely not necessary," he adds, "if you have the right culture and the right training and the right policies in place so that it's used with much less frequency, as a more of a last resort than a first resort."

John Rhoads, a former juvenile-detention official, wonders why the JJC, which oversees conditions, "didn't ask for or talk about the actual usage in the facilities." Rhoads, who helped develop inspection protocols and best practices for the Annie E. Casey Foundation, adds: "I think it would be helpful, if they say it is used ‘sparingly,' that they back that up with a usage report."

The JJC has access to the same statistical records obtained for this story, but it chose not to include them in the 2012 inspection reports, which covered the previous year's detention history.

Dave Roberts, the newest member of the San Diego County Board of Supervisors, says he's learned that the reason OC use dropped at East Mesa while rising at Kearny Mesa is a result of a large shift of older inmates and gang members between the facilities.

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On the campaign trail last year, Roberts pledged to explore the issue of OC spray. He now says it'll be a key priority during the next six months.

Roberts says that while he believes it should be used only as a last resort, he would also not want to see pepper spray replaced by physical, "hands-on" force, which can be dangerous to both youth and staff.

"What are the alternatives? And if you can't get someone detained to do something, what is the least harmful way to [gain compliance]?" Roberts asks. "I'm still looking closely at why there is a difference in opinion on pepper spray…. From my perspective, I want whatever is the safest alternative, not only for kids, but staff, to stop altercations."

Rhoads concedes that it's "a difficult issue," but he adds that "appropriate programs and training" would bring about major reductions in OC usage. He believes San Diego County should consider following the Juvenile Detention Alternatives Initiative he helped develop, which recommends alternatives to pepper spray.

Rhoads says the JJC should be asking questions like, "How do you reduce the usage? What kinds of interventions and steps do we take that will allow a different response than the use of pepper spray or the use of force?" 

Krisberg also has questions. He says the JJC should've measured how many violent incidents there were in the facilities, how many involved a single detainee versus a group of youths and how many incidents culminated in OC spray. The commission also should have looked at how many OC incidents were not tied to violence, but to non-compliance with orders, especially since the county's policies allow pepper spray to be used in cell extractions, Krisberg added.

Pepper spray can be especially dangerous for juveniles on psychotropic medications or diagnosed with asthma. Currently, the main safeguard is requiring OC-sensitive detainees to wear orange-mesh over-shirts to distinguish them from the rest of the population. But any thorough investigation into pepper spray would benefit from surveying the youth in custody.

Ex-offender Arellano says he was sprayed for talking back to an officer, and sprayed for failing to fall into line. On one occasion, Arellano says, another detainee started a fight with him and three officers sprayed him with the large cans of OC spray, nicknamed "Big Berthas."

If the goal is to improve compliance, Arellano says, OC is a failure.

"It really made you hate the staff—it was like, dang," he says. "No, it wouldn't make anyone behave better."

This story originally appeared in The Crime Report, a news site published by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.


Email davem@sdcitybeat.com or follow him on Twitter @Maassive.

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