The state Department of Corrections must dramatically reduce the use of pepper spray, restraints and solitary confinement for its teen inmates, a federal judge ruled Friday.
U.S. District Judge James Peterson ordered DOC officials and attorneys representing current and former inmates at the state’s youth prison suing the department to come up with a plan to reach that goal within two weeks, but he stopped short of banning the practices altogether as the plaintiffs requested.
In issuing his ruling, Peterson said DOC’s practices of routinely using pepper spray on inmates, placing shackles on inmates without evaluating their need and keeping teen inmates locked up in solitary confinement sometimes for longer than two months likely violate their constitutional rights and said prison administrators demonstrated a “callous indifference” to the harm being inflicted on the inmates through the use of the practices.
“This is the most severe and damaging type of solitary confinement that is used in the American penal system. Ted Kaczynski has less restrictive confinement than the youth at Lincoln Hills,” Peterson said, referring to the domestic terrorist known as the Unabomber, currently held in a supermax prison in Colorado.
Peterson’s ruling is the first court-imposed order that makes changes to how staff handle inmates at the Lincoln Hills School for Boys and Copper Lake School for Girls juvenile correctional facility in Irma, which has been under federal investigation for about two years over allegations of inmate abuse by prison staff and is at the center of three federal lawsuits, including one Peterson took up this week.
In making his ruling, Peterson issued blistering criticism of the DOC and its continued use of the practices despite having knowledge of their negative effects on inmates.
“They know the juveniles are suffering acute and potentially permanent harm when they serve these long sentences in solitary confinement, so it’s not enough to have good intentions and a want to do better,” he said. “(It’s) close to a callousness that the system has.”
Peterson also criticized DOC’s decision to hire two administrators he said have very little knowledge with how a juvenile prison should be run.
Peterson noted that prison security director Brian Gustke was hired in July 2016 with no experience working in a juvenile prison and has received very little training since. He also said the prison’s administrator, Wendy Peterson, has no experience working in a “successful” youth prison.
“Miss Peterson and Mr. Gustke are simply not in the position nor have the skills and experience to turn around a facility that is failing like Lincoln Hills,” he said, adding that the defendants have “demonstrated a callousness and indifference” to the harm inmates are suffering.
John Paquin, who oversees juvenile corrections at DOC, declined to comment after the ruling. An attorney for DOC said it’s too early to say whether the department will appeal.
DOC spokesman Tristan Cook said “DOC has consistently worked to identify and implement substantial reforms” at the prison.
“We look forward to using the next two weeks to further these efforts,” Cook said. “Secretary (Jon) Litscher has full confidence in the Division of Juvenile Corrections to continue making necessary reforms.”
Tom Evenson, spokesman for Gov. Scott Walker, said the governor “is confident that Secretary Litscher will ensure the concerns of the court are addressed.”
“Jon Litscher is widely respected by members of both parties and he is highly qualified to lead the Department,” he said.
The federal judge said the two groups must create an order that makes changes to practices at the youth prison that includes a policy of not keeping inmates in solitary confinement for longer than seven days and increasing their time out of their cells while in isolation, find an alternative to pepper spray and evaluate whether inmates need shackles on an case-by-case basis instead of using their current practice of placing them on all inmates in the most-restrictive solitary confinement housing unit.
Peterson’s ruling came after a one-and-a-half-day hearing during which an attorney representing nine current and former inmates at the youth prison argued that the DOC is aware its practices of using pepper spray on teens and locking them in solitary confinement harms inmates and continues the practices anyway.
Larry Dupuis of the American Civil Liberties Union of Wisconsin argued Friday that amounts to a violation of the inmates’ constitutional rights that protect them from cruel and unusual punishment.
Dupuis said even if DOC staff want to lessen the use of the practices but cannot because lawmakers won’t fund more staffing positions at the prison, for example, inmates’ rights are still being violated.
DOC attorney Sam Hall argued the inmates’ constitutional rights are not being violated because DOC officials are not consciously disregarding the known harms of the practices, nor do they have any ill will toward the inmates.
“We are starting to see some sort of change at Lincoln Hills,” he said.
Hall earlier Friday also asked Peterson not to order DOC to immediately halt their practices because it could “derail” the facility’s progress in changing how the staff handles serious misbehavior.
“It’s gotta be done incrementally,” Hall said.
DOC officials — including Litscher — have repeatedly in recent months said the issues at the facility prompting the federal investigation had been largely resolved or reduced.
Pepper spray was used 14 times in May and so far in June, compared to an average of 20 times a month prior to May, for example. And the number of female inmates harming themselves has dropped.
But Peterson said he believes his ruling to create a plan to reduce the use of the practices won’t derail their work and wasn’t convinced any significant “reforms” were under way anyway.
DOC “has completely failed to show Lincoln Hills is in the process of reform,” Peterson said. “I view the harm to the youths from the use of punitive solitary confinement acute, immediate and enduring so that (change) is not something that is going to be done slowly.”
Nearly three years have passed since Walker’s office was first notified of potential problems at the state’s youth prison, when his office received two separate communications in June and July of 2014 alleging incidents of staff abusing inmates and inmates abusing staff. Walker’s office received an audit that found the facility failed to meet a third of about 40 standards set by the federal Prison Rape Elimination Commission.
And in late 2015, dozens of state investigators began interviewing staff and inmates about the conditions there over a number of allegations including child abuse, second-degree sexual assault and misconduct in public office. The Federal Bureau of Investigation now oversees the investigation.
Nearly all DOC officials overseeing juvenile corrections — including former Secretary Ed Wall — have either resigned or been fired in that time.