|By Ann Coppola, News Reporter|
Pepper spray is widely accepted in law enforcement and adult correctional settings, but when it is used and why, and its place in juvenile correctional facilities is a much cloudier topic. Some see the spray as an inappropriate quick-fix for misbehaving youth; others say it’s a vital security tool. Nowhere is this debate hotter right now than in the halls of Texas juvenile institutions.
The ongoing battle dates back to August, 2007, when the executive director of the Texas Youth Commission (TYC) issued a directive instructing staff to use pepper spray before other methods of physical, hands-on restraint whenever practical. Liberalizing the use of the chemical agent had alarming results: after the directive the average number of pepper spray incidents in TYC facilities jumped from 60 to 250 a month.
A lawsuit from Texas advocacy groups over the rule change led to months of legal wrangling, but for the time being, a compromise has been reached. The current rule states that pepper spray can only be used after the juvenile corrections officer (JCO) determines that "imminent harm" exists. This includes combative or aggressive youth who may harm themselves, staff or other inmates.
In addition, JCOs must follow a “use of force continuum” before they resort to pepper spray. Use of the spray is authorized only after verbal strategies and physical restraints, such as a hands-on escort hold, or mechanical restraints, like handcuffs, fail to control the situation or are determined to be impracticable. As it stands now, pepper spray is to be used as a “last resort.”
“I think the agreement clarifies the existing rules regarding the use of OC [Oleoresin Capsicum] spray,” says Deborah Fowler, legal director for Texas Appleseed, which sued TYC. “We’d seen OC spray being used inappropriately. In a lot of situations, kids were being sprayed for passive resistance, like a kid saying ‘no’ to an order. This is not combative behavior. Under the agreement, the only way pepper spray can be used is if the child presents a threat of immediate harm.”
TYC has its own proposal for a new policy, which it presented at a public hearing on December 3. Their new rule would change the continuum of force by allowing JCOs to spray youths before attempting physical restraint, just like the August directive instructed.
“Our proposal removes some of the ambiguity we feel is in the existing policy about the appropriate use of OC pepper spray versus the use of physical restraint,” says TYC spokesman Jim Hurley. “Under the existing policy, pepper spray is used as the last resort and physical restraint must be attempted prior to the use of pepper spray. Our new policy would allow the use of pepper spray in certain instances in which the threat of physical danger to other youth or to staff is present. It’s not a ‘must-use’ rule, but it would allow for the use of pepper spray as opposed to physical restraint depending on the circumstances.”
TYC believes having to first use physical restraint causes more injuries to staff and inmates.
“What we have noticed is an astronomical amount of workers’ compensation claims that’s way beyond the state average due to physical confrontations between staff and inmates,” adds Hurley. “We’ve also had a number of youth injuries. We see it as a safety issue. To regain control of these facilities, the agency feels the use of pepper spray is a safer alternative than continuing to use physical restraining techniques resulting in harm to staff.”
Whether or not pepper spray is safe for use on juvenile offenders is up for debate. A recent report from the Texas Criminal Justice Coalition says, “Not one single study examined recommended pepper spray as safe for use on children.”
Current TYC rules prohibit spraying youths with mental disabilities or who have respiratory ailments or other conditions that can be aggravated by pepper spray. To enforce this, it maintains a no-spray list at facilities, like its Corsicana facility, which holds youths with serious mental illness.
“We use a water-based pepper spray that comes off fairly easily when you decontaminate with cold water,” Hurley explains. “We also use a minimum strength spray. We don’t use what the adult system uses.”
Despite its effectiveness and level of toxicity, not every juvenile system in the U.S. believes pepper spray is necessary.
“We don’t use it,” says Ohio Department of Youth Services public information officer Andrea Kruse. “DYS runs eight state juvenile correctional facilities and we have about 2,000 kids that come through the institution. Pepper spray has never been part of our practice and at this point we have no plans to begin using it.”
Still, some experts don’t believe an all-out ban is necessary.
“I believe that non-lethal tactical weaponry in a confinement setting clearly has its place, says Steve Martin, an Austin-based corrections consultant and national expert on excessive use of force and in-custody death cases. “I don’t even think it’s an issue with most correctional professionals. It’s almost kind of a red herring to make that an issue: they’re accepted, they’re used.”
“The whole issue centers around their appropriate and proper application,” Martin adds. “If they’re used in a narrowly defined manner pursuant to well defined policy, they can be very effective tools in management of confined persons, juveniles or adults.”
In the debate over spraying versus hands-on restraint, both sides can agree to at least one thing; proper training is a must. The TCJC report notes, “If juvenile corrections personnel are not proficient in primary control and de-escalation techniques, they may increasingly rely on pepper spray as an option of force.”
“Pepper spray is so convenient to use in the sense that you’re just pressing an aerosol canister and dispensing the agent,” Martin says. “Because it’s so convenient there can be a tendency to use it precipitously or unnecessarily.”
TYC says it’s taking steps to ensure this does not happen.
“We are increasing the training for JCOs who will be carrying OC spray from 80 to 300 hours,” Hurley says. “You have to use common sense, and that comes from training and knowing how to appropriately handle situation.”
A decision about TYC’s new proposal could come as early as January. For now, it seems the spray is here to stay.
TCJC report on pepper spray
Read the current TYC policy
Learn more about pepper spray
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