Senator Eliot Shapleigh - El Paso, Texas

Incarcerated teenagers in the Texas Youth Commission system are getting pepper-sprayed by guards when they refuse to follow routine orders and while on suicide watch, not just when they pose a threat, a Travis County court was told Monday.

The testimony by national corrections expert Steve Martin, who based his account on a review of Youth Commission records, provided the first public detail about what critics say is an escalation in the use of chemical restraints inside state-run youth lockups.

After hearing more than two hours of testimony, state District Judge Gisela Triana ordered Youth Commission officials and attorneys for two youth advocacy groups, which sued the agency in September, to reach agreement by Wednesday on a policy for when to use the spray, something they have been unable to do for weeks.

A key problem: Because official Youth Commission reports are conflicting and vague, Triana said it is unclear whether pepper spray has been used appropriately or inappropriately in many cases.

What was clear from courtroom testimony, though, is that pepper spray is being used a lot more than just a few months ago. So far this year, just over 1,200 reports of spraying have been logged, compared with only 196 last year. In June, a month before Youth Commission officials allowed broader use of pepper spray to control misbehaving or noncompliant youths, 66 cases were reported. In October, 207 spray reports were logged.

The Youth Commission holds about 2,900 youths.

"Those numbers are stunning," said Barry Krisberg, a nationally recognized juvenile justice expert who is president of the National Council on Crime and Delinquency. "Nobody is going this direction. Everybody is going the other direction ... to stop its use or reduce it to the minimum. You're only going to get angrier, more alienated youths when you do this."

Krisberg was a member of the special Blue Ribbon Task Force named in May to recommend changes at the Youth Commission amid a sex abuse scandal. Among the recommendations: Don't expand the use of pepper spray.

Pope and other Youth Commission officials have bristled at criticisms, saying the policy change has made conditions safer. Before, an increasing number of youths and staff members had been hurt during physical restraints. Since August, those injuries have dropped, officials said.

Martin, who reviewed the Youth Commission's reports on pepper spray incidents, characterized many as "brazen violations" of a long-standing agency policy that allowed chemical restraints to be used only as a last resort. During the hearing, Youth Commission attorneys repeatedly objected to Martin's characterizations that the increased use of pepper spray was improper and troublesome. Despite that, Grant Goodman, an assistant general counsel for the agency, said afterward that he thinks the concerns of the advocacy groups will be addressed by a policy on pepper spray currently being developed.

In July, the advocacy groups alleged in court filings that Billy Humphrey, a deputy director of juvenile corrections, "began issuing e-mails to staff encouraging them to use OC (pepper) spray before physical restraint" — even though agency policy mandated just the opposite.

In August, despite warnings from national juvenile corrections experts, acting Executive Director Dimitria Pope approved a policy allowing the use of pepper spray first.

As a result of those two decisions, court testimony showed, the use of pepper spray has skyrocketed.

"This is tremendously disturbing. It should not be happening," said Jim George, an Austin attorney who is the board chairman of Texas Appleseed, one of the advocacy groups challenging the increased use of pepper spray.

In late September, Appleseed and Advocacy Inc. filed a lawsuit to stop the more liberal use. Youth Commission officials agreed in a court-approved settlement in late October to restrict its use, a deal that advocates say was quickly ignored.

In court filings, the groups say Youth Commission documents newly disclosed as a part of the suit show pepper spray is being used in violation of agency policy. In his testimony, Martin agreed. Among the cases he cited was an Oct. 1 incident in which a youth on suicide watch at the Coke County Juvenile Correctional Center was sprayed after he hid behind a blanket and "refused to comply with an order."

"There is no articulation of a threat or possible loss of life," Martin testified.

In videotaped testimony, Teresa Stroud, superintendent at the Ron Jackson State Juvenile Correctional Complex in Brownwood, said that Humphrey called the agency rule limiting the use of pepper spray the "stupidest policy" and promised to hold her responsible if she did not support expanded use of the spray. She said she has filed a grievance as a result.

Humphrey, who was present at the hearing, did not testify and had no comment.

Pepper spray: growing numbers

Monthly incidents of pepper spray use in Texas Youth Commission lockups:

January 31

February 42

March 69

April 79

May 85

June 66

July1 86

August 251

September 219

October 207

Source: Court filings based on Texas Youth Commission data

What's happened in pepper spray dispute

July: Billy Humphrey, an agency corrections division deputy, reportedly instructs guards to begin using pepper spray before physical restraint, opposite a long-standing policy.

Aug. 2: Dimitria Pope, the Youth Commission's acting executive director, issues a directive allowing the use of pepper spray by guards before physical restraints.

Sept. 13: Lawsuit filed on behalf of three youths with disabilities who were pepper-sprayed, alleging that the practice is illegal and should be stopped.

Sept. 28: The agency agrees in a court order to suspend Pope's directive and limit pepper spray use again.

Oct. 22: Advocates file to reopen the case, alleging that the agency has not complied with the earlier agreement.

Monday: Court filings reveal the skyrocketing use of pepper spray.

Source: Court filings