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Proposed Rules Could Increase Use of Pepper Spray on Youths

County probation chiefs want new authority to use pepper spray, saying proposed rules would provide more local control over how their facilities are operated
New rules under consideration at the Texas Juvenile Justice Department would expand the authority of county juvenile probation agencies to use pepper spray on aggressive youth offenders in secure facilities.

County probation chiefs from across the state are asking the TJJD Board to approve the new rules, saying they would provide more local control over how the facilities are operated. But some advocates worry that more use of so-called chemical restraints could be a dangerous step backward in efforts to reform the state’s juvenile justice system.

“Whatever benefits they feel like they might get out of utilizing pepper spray are not big enough for all the dangers,” said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition.

At its Oct. 18 meeting, the TJJD Board tabled the publication of new, expanded rules for the use of pepper spray that were proposed by a TJJD advisory council composed of county probation officials. The board wanted more information about how the rule would be implemented and overseen.

Currently, the use of pepper spray at county juvenile facilities is permitted only in case of a riot. The proposed new rules would allow counties to use it when youths becomes physically aggressive and endanger themselves or others, but only if other forms of restraint won’t work.

Estela Medina, chief probation officer in Travis County and chairwoman of the advisory council, said the new rule proposal was not intended to expand the use of pepper spray but rather to ensure that guidelines are in place for counties that choose to use it in instances other than riots.

"It’s a very small number that have an interest" in using pepper spray, she said. "The greater number of counties probably would not use it."

The rules would allow staff to carry pepper spray only if they are trained to use it. Those who are trained would be required to experience being sprayed during their training. Staff would be prohibited from using the chemicals on youths who have certain health conditions and allergies. And the chief administrator would have to review each use of pepper spray to ensure that the policy was followed.

At least seven different groups representing juvenile probation departments across the state have submitted to the TJJD Board letters or resolutions from their members in support of the proposed rules.

Luis Leija, Calhoun County’s chief juvenile probation officer and president of the South Texas Chiefs Association, said members of his organization supported the rules even though most don't intend to use chemical restraints.

“It’s always good to have local control of what you do with your facilities,” Leija said.

As counties take on an ever-increasing share of the burden of housing troubled youths, Yáñez-Correa said she worried that there are too few measures in place to ensure accountability for the use of chemical agents at county facilities.

Beginning in 2007 with a legislative overhaul sparked by violence and sexual abuse at state detention facilities, Texas has worked to keep more young offenders in facilities that are close to their homes, families and community support systems, and out of far-flung rural state institutions. While county facilities housed nearly 2,900 youths in 2013, only about 1,100 youths were in secure state facilities.

But Yáñez-Correa said there is less accountability for county juvenile facilities than for state facilities, which are directly overseen by the TJJD.

Her fear, she said, is that pepper spray will become the go-to method for staff dealing with youths who are prone to act out. The coalition and other juvenile justice reform proponents oppose the use of pepper spray on youths. In a November 2007 report, the coalition said that too little was known about the potential health effects of the chemicals, in particular on youths with disabilities.

“The airway of a small child is more fragile than an adult’s, and children have not yet fully developed the muscles which normally aid in breathing,” the report stated.

The same year, the groups sued the TJJD when it attempted, without seeking public input, to change its rules to allow an increase in the use of pepper spray.

“We’re trying to institute best practices and get probation departments the tools they need that are really therapeutic for kids,” Yáñez-Correa said. “There are a lot more effective strategies.”

Jim Hurley, spokesman for TJJD, said that if the rules were implemented, the state agency would be responsible for overseeing the use of pepper spray and the implementation of the rules. But he said the TJJD board has no concrete plans to revisit the proposed rules unless the advisory council brings it up again.

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/10/31/proposed-rules-would-allow-increased-use-pepper-sp/.

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