The Adair Youth Detention Center, site of a riot in late 2022, is one of the Kentucky facilities under investigation by the U.S. Justice Department. (Kentucky Justice and Public Safety Cabinet)

The mood was celebratory as Kentucky and federal officials crowded into the Capitol Rotunda on a cold January day in 2001 to announce the end of five years of federal oversight of the state’s problem-ridden juvenile justice system.

“We’re never going to slide back to where we were in 1995,” said then-Juvenile Justice Commissioner Ralph Kelly. “We know we’re on the road to victory.”

But slide back Kentucky has — despite sweeping reforms enacted under a 1995 federal consent decree that advocates say, by the early 2000s, made it a national model for rehabilitating young offenders.

Now, Kentucky faces the threat of renewed federal oversight after the U.S. Justice Department announced May 15 it is opening an investigation into whether conditions at eight juvenile detention centers and one residential center for offenders violate civil rights of youths.

In a letter to Gov. Andy Beshear, the department said it is investigating possible excessive use of chemical force (pepper spray) and physical force by staff, failure to protect youths from violence and sexual abuse, overuse of isolation and lack of mental health and educational services

And longtime observers of the system who have watched the downward slide — including Earl Dunlap, a juvenile justice expert appointed by the federal authorities? to monitor Kentucky’s compliance with the 1995 consent decree — say it didn’t have to happen.

“Disgusting and sad,” is how Dunlap described it. “You had people in leadership in Kentucky who should not have allowed this to happen. You went from nothing to something and then right back to nothing.”

Dunlap, who is semi-retired and lives in Illinois, said he became so concerned about reports of problems in juvenile justice that in March 2023, he wrote to Beshear warning him of the risk of failing to fully address problems.

While congratulating Beshear on efforts to reform juvenile justice, Dunlap added in his letter he feared such efforts might fall short of federal standards and result in future litigation.

Dunlap said he offered to provide the administration with assistance for reform efforts but did not get a reply.

Beasher’s office did not immediately respond to a request for comment about Dunlap’s letter.

But Terry Brooks, executive director of Kentucky Youth Advocates, said his organization has found the Beshear administration uninterested in outside input when it comes to juvenile justice, calling it a “closed shop.”

“Not only has there not been any outreach, there has not been a response to folks trying to reach out,” he said.

Problems build for years

Brooks said while problems have been building over the years in juvenile justice, Beshear, now in his second term, and lawmakers ultimately bear responsibility.

“This is clearly on the Beshear administration and the General Assembly,” he said. “Clearly the governor and the General Assembly abrogated their responsibility.”

Beshear defended his administration’s efforts to upgrade juvenile justice in a statement released Tuesday by Morgan Hall, spokeswoman for the Cabinet for Justice and Public Safety.

“In response to violent outbreaks and to enhance security for staff and youth, the Beshear-Coleman administration developed an aggressive plan starting in December 2022 to implement sweeping improvements to Kentucky’s juvenile justice system, for the first time since its creation nearly 25 years ago,” it said.

In December, Beshear announced the state would open a detention center for females only in Campbell County following the sexual assault of a female detainee in Adair County.

Beshear also has sought to address acute staffing shortages by increasing starting pay for youth workers to $39,127 a year and the General Assembly approved about $138 million a year each year in additional juvenile justice funds for fiscal years 2023 and 2024.

It also has worked to upgrade medical and mental health services, the statement said.

Efforts also are underway to reopen the Jefferson County Youth Detention Center, which Louisville Metro Council decided to stop funding in 2019 after operating it for nearly 40 years. That forced the state to take on housing juvenile detainees, some in distant counties at understaffed facilities, far away from families and requiring long drives back and forth for court appearances.

Dunlap calls that a huge blunder.

“The ramifications were that the largest volume of kids in the state had to be transported elsewhere,” he said. “It was just plain ridiculous.”

‘Take the initiative’

The legislature, under pressure from the 1995 consent decree, in 1996 created the Department of Juvenile Justice to oversee youths charged with and convicted of offenses, which previously had fallen under the Cabinet of Health and Family Services.

While the previous federal investigation focused on residential centers, where youths found guilty of offenses were sent for treatment, the state also elected to create a system of new regional detention centers to hold children with pending charges. Previously, in many counties, children were held in adult jails, generally in separate units.

Masten Childers II, health cabinet secretary for former Gov. Brereton Jones, said the state went beyond requirements of the consent decree.

Childers, who? oversaw negotiation of the 1995 consent decree with federal authorities, said he was “surprised and disappointed” to learn Kentucky once again is subject to a civil rights investigation of its juvenile facilities.

“If our consent decree had been followed, we would not be talking about this,” he said.

Still, he thinks the Beshear administration can use the investigation to improve the system should it result in federal enforcement.

“Kentucky needs to take the initiative,” he said. “This is not the time to be defensive.”

‘No win here’

Sen. Whitney Westerfield, R-Fruit Hill and longtime proponent of juvenile justice reform, said he’s concerned that the state’s system is becoming more like an adult prison model instead of one focused on rehabilitation and treatment of youths, many of whom have experienced significant trauma and have mental health issues.

The current Juvenile Justice Commissioner, Randy White, appointed by Beshear in March, is a 27-year veteran of the state adult prison system.

“The extent to which we make our system for kids more like a corrections facility and less a place for opportunities for kids, the more harm we’re going to do in the long run,” Westerfield said. “The more we approach it as a baby prison, the more damage we’re going to do.”?

Westerfield said he’s saddened that problems with Kentucky’s juvenile justice system have attracted attention of federal authorities but hopes it results in improvements.

“If this is what it takes, then that’s a good thing,” he said.

Meanwhile, he said, he’s concerned that the juvenile justice system is struggling even as Kentucky lawmakers enact tougher laws on juvenile offenders, citing misleading claims that today’s youths are more violent or that juvenile crime is increasing.

“Juvenile crime is not worse. It’s dropping,” he said. “Adult crime is dropping.”

Juvenile crime has been falling steadily and in 2020, was at its lowest level since 2005, according to a U.S. Office of Juvenile Justice and Delinquency Prevention report last year.

Still his fellow lawmakers rely on anecdotal events or a headline-grabbing crime as a reason to enact tougher laws, including one that takes effect July 1 to require mandatory, 48-hour detention for youths charged with serious crimes, Westerfield said. That has the potential to send an additional 400 youths a year into state juvenile detention facilities even as those facilities come under investigation by federal authorities.

“There’s no win here except the political victory for the sponsors and for the people who voted for it,” Westerfield said. “They’s going to get to say they’re tough on crime.”

‘Damn pepper spray’

The current federal investigation focuses on the eight detention centers and one residential center, the Adair Youth Development Center, the site of a November 2022 riot, resulting in a serious injury to staff and sexual assault of a female youth. In addition to those facilities the state operates five other youth development centers, eight group homes for juveniles and six nonresidential day-treatment programs.

In recent years, allegations of abuse, solitary confinement, overuse of force and overuse of adult corrections-type measures such as pepper spray have dominated headlines — initially in reporting by John Cheves of the Lexington Herald Leader — and more recently, outlined at legislative hearings including allegations of? sexual misconduct and disproportionate treatment of Black and multiracial youth.?

In January, state Auditor Allison Ball released a report requested by lawmakers detailing a series of serious problems with the system’s detention centers including overuse of force, significant understaffing, lack of clear policies of managing youth behavior and misuse of isolation.

The report, by the consulting firm CGL Management Group, also expressed concern about the Beshear administration’s introduction of pepper spray and tasers into juvenile centers, saying they are largely unnecessary.

“Current nationally recognized best practices do not support the widespread deployment of chemical agents or the use of electroshock devices (such as Tasers) within juvenile detention and instead recommend strategies to reduce or eliminate these uses of force,” it said.

The Justice Cabinet, in a statement, defended the use of pepper spray, also known as oleoresin capsicum, or OC spray.

“Pepper spray is a non-lethal, effective tool for both staff and juveniles, and is issued by adult and juvenile facilities across the country,” it said.

Further, it said, the legislature has mandated that pepper spray and tasers be issued to staff at juvenile justice facilities.

The outside audit warned use of pepper spray is especially risky for children with asthma or other health conditions or those on certain medications.

“As staffing levels improve, further consideration should be given to entirely removing pepper spray,” it said.

Dunlap, the former federal monitor, said he was shocked when Beshear authorized the use of pepper spray in juvenile detention centers last year, calling its use “old school.”

“The first thing I would do is get rid of that damn pepper spray,” he said. “They’re gonna kill someone with it.”