Cumberland County Sheriff Kevin Joyce speaks at a press conference outside Portland City Hall in early June with other local and state law officials. Credit: Troy R. Bennett / BDN

The state is reviewing whether Cumberland County Jail guards used excessive force last year when they pepper sprayed two inmates in the throes of psychosis and then allegedly failed to provide them with enough medical care before bringing them to a psychiatric hospital for mental health treatment.

In one case, staff at the Portland jail filled a man’s cell with pepper spray to handcuff him. He had grown violent and wasn’t following officers’ commands as they tried to restrain him to drive him to the hospital.

Though the officers washed him off with water, he arrived at Riverview Psychiatric Center in Augusta in such poor condition — his eyes still burning from the spray — that hospital staff ultimately referred him to another hospital to treat his physical health after trying to clean him themselves, according to a letter to the state from Jenna Mehnert, the executive director of National Alliance on Mental Illness of Maine.

The Maine Department of Corrections will review the incident after receiving Mehnert’s June 10 letter, said spokeswoman Anna Black. Mehnert has also asked the department to investigate a second case that involves a woman who was pepper sprayed by Cumberland County Jail staff before they drove her to Riverview, though there are fewer details about what happened in her case. 

Mehnert learned about the two patients from the superintendent of Riverview during a meeting at the hospital on April 11, 2019, and reported them in her recent letter to Randy Liberty, commissioner of the Maine Department of Corrections. The department has regulatory authority over the county jails.

Mehnert decided to ask for an independent review because Cumberland County Sheriff Kevin Joyce, who oversees the Cumberland County Jail, has stood by the actions of his staff, she wrote in her letter. Their conflict highlights the ethical and legal dilemmas that routinely occur because of Maine’s reliance on its jails and prisons to house people in mental health crises. The criminal justice system especially struggles with people whose behavioral health predisposes them to violence.

In the case of the man whose cell was filled with pepper spray, correctional officers had no other options but to use force to restrain him because he was so violent, Joyce said in an interview. Pepper spray seemed like the least harmful option, he said, and was part of an effort to move him to a more therapeutic setting that was better equipped to handle his mental health needs.

Mehnert, however, is worried that using force against people whose behavior directly stems from their mental illness, and without making a reasonable effort to accommodate their illness, could violate their rights as people with disabilities. 

In addition to asking the state to investigate whether the two inmates were mistreated, Mehnert asked the state to review Cumberland County’s pepper spray policies “with specific consideration of the legal expectations of the [Americans with Disabilities Act] that reasonable accommodations are provided to an individual with a mental illness,” according to her letter. 

Black, with the Department of Corrections, said the department has made the review a priority, and it is expected to take a few weeks.

It comes more than a year after the incidents occurred because Mehnert wasn’t initially sure how to address the matter, according to her letter.

Mehnert wrote that she was invited to Riverview last spring to meet with Superintendent Rodney Bouffard and Medical Director Matthew Davis to learn about the hospital’s progress under its new leadership. 

But during the meeting, Bouffard, who previously served as warden of the Maine State Prison, confided that he had something else he wanted to talk to her about, too. The superintendent “was very concerned about the use of OC spray” — otherwise known as pepper spray — “by one specific sheriff’s department,” Mehnert wrote. 

The hospital had recently admitted two patients, a man and a woman, from the Cumberland County Jail in Portland who had experienced psychotic episodes prior to arriving in Augusta, and, in both cases, the jail staff had subdued them by using “unacceptable” amounts of pepper spray, Bouffard told Mehnert.

One had been so heavily sprayed that Riverview’s staff struggled to clean the residue off his face. He needed further medical attention for his physical health at nearby MaineGeneral Medical Center, though the letter didn’t detail the scope of his medical needs. The superintendent worried that the jail may have violated the man’s rights by failing to adequately clean the residue from the man’s face, forcing him to suffer a prolonged burning sensation, according to Mehnert.

Mehnert didn’t provide many details in her letter about the woman who was sprayed, though she said she met with both patients during her April 2019 visit to Riverview. The woman was older and still delusional during their meeting, Mehnert said, but she recalled being sprayed by jail staff. 

The male patient, referred to as “J,” was more articulate, she said, and described his confusion when officers removed him from his jail cell without explaining to him what was happening or where he was going. The pepper spray badly burned his eyes, he told her.

Mehnert kept the information to herself because Bouffard, the hospital superintendent, asked her not to disclose that he had drawn her attention to Cumberland County’s practices, according to her letter.

However, Bouffard had previously mentioned his concerns about the male patient to Joyce, the sheriff, according Jackie Farwell, a spokeswoman for the hospital. The superintendent contacted the sheriff shortly after the patient was admitted in February 2019, letting Joyce know he didn’t believe the jail staff had properly cared for the patient after they sprayed him. 

“The other patient referenced in the June 10 letter had relayed to Riverview staff a previous experience of being pepper sprayed, but staff did not witness the incident or its immediate effects,” Farwell said. “Riverview has not subsequently had evidence or reports of similar incidents but would not hesitate to raise concerns with the appropriate authorities should the need arise.”

Mehnert was also worried that raising the matter publicly might jeopardize her organization’s relationship with the agency, given that NAMI Maine works closely with law enforcement officials on how to care for people with mental illnesses, she wrote. At the time, she only documented her conversations with the two Riverview patients with her personal attorney, she wrote. 

About a year later, on March 6, Mehnert attended a meeting with Joyce and state officials to discuss a bill that touched on the ability of transport officers to use force against inmates. At the meeting, Mehnert raised her concerns about the bill and cited the example of the man who was pepper sprayed. 

She didn’t specifically say that it occurred at the Cumberland County Jail, she said, but in the meeting Joyce remembered the incident and defended the actions taken by his staff. That’s when Mehnert decided to formally write to the state to request an outside review, she wrote in her letter. (Lawmakers never acted on the bill because the Legislature adjourned soon after due to the coronavirus pandemic.)

“If I am an individual, and I’m presenting a threat to your safety or a law enforcement officer’s safety, then the use of a chemical agent or Taser is appropriate,” Mehnert said in an interview. 

“But if I’m a person with a mental illness, and I’m in a cell and not complying with your request to leave the cell, there is not an imminent risk of potential violence toward staff,” she said. 

Joyce received a copy of Mehnert’s letter on Monday evening and is in the process of compiling documents for the state, he said Tuesday morning. 

But he repeated that his staff responded appropriately to the male inmate whose cell officers filled with pepper spray. When considering other options, such as wrestling him into handcuffs or using a Taser, the jail’s staff believed pepper spray would cause him the least amount of harm, the sheriff said.

“[Several guards] can rush in, and it becomes a scuffle, and someone gets hurt. Or you can spray under the door, so the room fills with [pepper spray], and the person complies. To me, that is the best-case scenario because no one got hurt,” he said. He described pepper spray, which is derived from compounds found in hot peppers, as similar to “aerosol hot sauce.” 

After officers sprayed the inmate, they were able to handcuff him and rinse him off. The sheriff was surprised when he later heard from Bouffard, with Riverview, that the man arrived at the hospital in need of further medical care, he said. Even so, the jail’s leadership team reviewed the incident and determined it didn’t violate any use-of-force policies. 

The officers followed a written policy that outlines when and how correctional and law enforcement officers can use force against someone in custody. They do not have a separate policy on how to subdue inmates who are violent and extremely sick. Instead, they rely on mental health staff and training to de-escalate situations, he said. 

He couldn’t comment on the woman referred to in Mehnert’s letter because he isn’t sure who the former inmate is. He is in the process of finding that out.

Read the Cumberland County Jail’s use-of-force policy here.