The feds haven't said yet whether they will investigate the extreme use of pepper spray at local juvenile halls, but basically everyone in the juvenile-justice community—and beyond—thinks they should.
Everyone. San Diego County supervisors. Committee chairs. Outraged talk-show hosts. Frustrated citizens. Even officials with the Probation Department—which oversees the county's five juvenile-detention centers—have said they "welcome the opportunity to participate in any inquiry the Department of Justice decides to conduct."
Some advocates have suggested that the feds might go further and force the entire state of California to change its policies. The facts are that bad.
Two years ago, CityBeat raised questions about the extreme use of pepper spray at the county's juvenile detention centers—there were 461 incidents in 2011. That set off a chain of events, including an independent investigation by the Youth Law Center (YLC), a San Francisco nonprofit. On July 25, YLC and a coalition of legal and human-rights groups submitted a complaint to the U.S. Department of Justice's Civil Rights Division. Based on an analysis of two years of incident reports, the complaint revealed a culture of "spray first, write a report later." By the Probation Department's own records, staff used pepper spray for everything from punishing youth for sitting in the wrong spot to forcing suicidal teenagers to submit to strip searches.
Few juvenile institutions in the U.S. use pepper spray—also known as oleoresin capsicum, or OC spray—with most juvenile-justice experts considering it a throwback to a time when punishment and control took precedence over safety and rehabilitation. Right now, only five states and Puerto Rico allow juvenile-detention staff to carry pepper spray.
When CityBeat first reported on the issue in May 2012, the Probation Department downplayed the problem. However, facing increased scrutiny from oversight boards, youth advocates and a new county supervisor, the department, during the last year, has incrementally reduced the number of pepper-spray incidents. But advocates complain that probation hasn't implemented new policies to protect detainees. While the department remains largely silent, here's how the slow wheels of reform are turning on the local and state levels:
Two years ago, county Supervisors Ron Roberts and Dianne Jacob were unswayed by CityBeat's investigative reporting. Roberts thought the "the policy of using pepper spray first seems proper," while Jacob called the county's practices "responsible and reasonable." Other supervisors resisted weighing in, except to say that it merited further attention.
Following the YLC complaint, both Jacob and Roberts have changed their position. Jacob says she welcomes a DOJ investigation. And when a constituent, Samantha Ollinger, wrote to Ron Roberts, asking that Chief Probation Officer Mack Jenkins be fired, Roberts responded that the incidents outlined in the complaint were indeed "troubling and need to be fully investigated" and pledged to personally monitor the situation.
But another county supervisor has been investigating probation all along. After he was elected in 2012, Dave Roberts—himself a father to a number of adopted children—assigned his staff to examine the juvenile halls, focusing specifically on the use of pepper spray in non-fight situations, such as forcing resistant youth to leave their cells.
Dave Roberts noted that the county has made an effort to find other means of de-escalating volatile situations, leading to a reduction in pepper-spray use, but he remains concerned and says he also welcomes a federal investigation. Roberts' office has yet to see new policies in writing—despite requests—or been granted access to the training officers receive.
The county's Juvenile Justice Commission, a watchdog task force of the San Diego Superior Court, has also expressed concern about pepper spray. They demanded to see changes to policies and procedures to clearly reflect that pepper spray could be used only when there was a threat to physical safety and never "to gain compliance with an order or for punishment in any circumstance." They further encouraged the department to eliminate the use of pepper spray altogether.
That was in February; the probation department has yet to provide new policies.
State of California
Spurred by reports out of San Diego, the Juvenile Justice Standing Committee, a state advisory board, began to examine the use of pepper spray on the state level (the committee has limited jurisdiction over local facilities). They found that state policy offered few guidelines for the use of chemical restraints on juveniles and that no statewide data existed on use in local facilities. While the committee intends to issue recommendations, the next shot at changing state policy won't come until 2016.
"The allegations in the [YLC] complaint are shocking on their face—that's me speaking," the committee's chair, David Steinhart, said. "I think San Diego has a lot of explaining to do about how those incidents are consistent with commonly accepted law and practice. That's what's going to play out in terms of a [federal] investigation."
San Diego children's advocate Sandra McBrayer sits on that committee and chairs a federal oversight committee that has also been investigating pepper-spray use. Since the DOJ already had to straighten out Los Angeles County on this very issue, and now there are problems at California's second largest county, McBrayer predicts the DOJ may shift to a top-down strategy and force statewide change, rather than pursue county-by-county reform.
And Assemblymember Lorena Gonzalez is considering introducing legislation in response to revelations in the YLC complaint that the probation department pepper sprayed both female and male offenders who refused to submit to strip searches in front of staff of the opposite sex.