The Sting of Juvenile Detention

From The Crime Report: 

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 your body, he explains. Instead of affecting just your 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 Southeast 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 San Diego CityBeat through the California Public Records (CPRA) Act 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 the 2011, it’s not clear that county justice officials are willing to address the problem seriously.

461 incidents in 2011

Last year, San Diego 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 were 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, the new forms do not 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 did not respond to multiple requests to explain why they failed to fulfill the commitment to include OC questions in its inspection reports.

As it happens, neither of the commissioners has extensive experience in juvenile justice issues. 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 who is a customer service representative for the San Diego Padres.

The records obtained by CityBeat in fact 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.

Inconsistencies in Procedure

Had the JJC thoroughly inspected the detention facilities’ records it would have found inconsistencies in procedure among the various 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 CPRA show that showers are mandatory at East Mesa.

Record-keeping at the facilities are also fraught with errors. For example, the required daily logs for the pepper spray canisters—CityBeat also obtained those through public records laws—included many blanks, discrepancies in the weight of spray cans before and after shifts, un-documented  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 have not been made public.

The 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 probation department has refused to provide an accounting of what those incidents involved.

According to the probation department’s policies, one such use would include room extractions, whereby staff pump OC into a cell to force the detainee into submission.

The argument that OC spray is used “sparingly” and is not “controversial,” doesn’t seem to 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 American Civil Liberties Union (ACLU) of San Diego and Imperial Counties.

“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.

“The Juvenile Justice Commission should tell the public how it has monitored the situation in 2012, and what it has found regarding its use, policies and training procedures,” Dooley-Sammuli says.

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

‘Bad Ol’ Days’

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

“I think most respected professional would agree with me that it’s time to move on.”

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

In a 2011 report, CJCA said that there is a dearth of studies on the safety implications for juveniles. But it adds that most juvenile justice agencies say the argument that pepper spray use doesn’t harm the relationships between staff and youth— relationships 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 Council of Juvenile Correctional Administrators 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 all been forced to reduce OC usage following legal pressure from civil rights groups 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 did not 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,” Don Specter, who runs the Prison Law Office, says.

“Instead of spending the time to talk to the youth or to figure out alternative means or non-violent ways of gaining compliance, officers will often resort to pepper spray. I've seen this in other jurisdictions as well.

“It is absolutely not necessary 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.”

Regarding the JJC reports, Specter adds: “The fact that it’s not controversial is wrong. The fact that they’re not going to ask questions isn’t a strategy that’s likely to produce very many changes.”

John Rhoads, a former juvenile-detention official, wonders “why the Juvenile Justice Commission, which is overseeing 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 does have access to the same statistical records obtained for this story, but chose not to include them in the 2012 inspection reports, which covered the previous year’s detention history.

Dave Roberts, the newest member elected to the San 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.

Alternatives to OC?

On the campaign trail last year, Roberts pledged to take a close look at the issue of OC spray. He now says it will become a key priority over the next six months of his term.

Roberts said that while he believes pepper spray 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. “Is it through physical force or through pepper spray? 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 that San Diego County should consider following the Juvenile Detention Alternatives Initiative he helped develop, which recommends alternatives to pepper spray.

According to Rhoads, the JJC should be asking questions such as, “How do you reduce the usage? What kinds of interventions and steps do we take that will allow a difference response than the use of pepper spray or the use of force?”

Krisberg also has a list of questions. He says the JJC should have 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 place in 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.”

 

Read more from The Crime Report: http://www.thecrimereport.org/

Dave Maass, an investigative contributor to San Diego City Beat, was a 2012 Fellow in the John Jay/Tow Juvenile Justice Reporting project. He welcomes comments from readers.