The state has decided not to appeal U.S. District Judge James D. Peterson's order that it stop abusing youths at the Lincoln Hills and Copper Lake juvenile prisons.

Peterson this week ordered drastic cutbacks in the the schools' use of pepper spray, solitary confinement and mechanical restraints on youths entrusted to the state's care.  Peterson's full order is below. 

The plaintiffs seeking to end abuses at the Lincoln Hills and Copper Lake juvenile state prisons was a far stronger preliminary injunction to accomplish their goal than state defendants will agree to, according to federal court records.

The two sides disagree on solitary confinement / restrictive housing reforms, some pepper spray reforms, and the scope of the order. They do agree, however, that the use of tethering, or handcuffing a youth's wrists to a belt around the waist, should be eliminated.

A draft preliminary injunction was filed Friday by the lawyers in the case. The document listed areas of agreement and disagreement. U.S. District Judge James D. Peterson will ultimately decide which provisions to accept or reject.

The plaintiffs, present and former inmates at the facilities, are represented by the American Civil Liberties Union of Wisconsin and the Juvenile Law Center,  with pro-bono assistance from Quarles & Brady. Defendants include Lincoln Hills, Copper Lake, and Department of Corrections officials, including Secretary Jon Litscher.

Below are some of the key provisions in the draft document. The entire document is at the bottom of this post.

Areas of agreement

(Lincoln Hills School) and (Copper Lake School) should not place youth in solitary / restrictive housing for non-violent or minor infractions. 

School staffs should not confine youth in pre-hearing restrictive housing unless the youth presents an immediate and substantial risk of great bodily harm to self or others. all: 

All use of restrictive housing / solitary should be justified in writing.

Youth should receive rehabilitative programming.

Tethering should be eliminated;  handcuffing should be minimized.

Areas of disagreement

Youths with mental illness

Plaintiffs: LHS/CLS should stop locking youth with mental health diagnoses in restrictive housing. If a youth with a mental illness becomes violent, the school should consider alternative placements.

Defendants: The schools can continue to use solitary / restrictive housing for youths with mental illness, but those placements should be reviewed by psychological service unit (PSU). (The unit already has come under sharp criticism.)

Pre-hearing security

Plaintiffs: The time a youth is held in pre-hearing restrictive housing should be limited to 24 hours.

Defendants: Pre-hearing restrictive housing should be limited to three business days.

Punitive solitary / restrictive housing

Plaintiffs: Punitive use of restrictive housing should be limited to three days, with a monthly aggregated limit of four days.

Defendants: Punitive use of restrictive housing should be limited to seven days, with no monthly limit.

"Out time"

Plaintiffs: Youth must be out of their cells for at least eight hours per day, including at least six hours of structured activities, including on non-school days.

Defendants: Youths should be out of their cells a minimum of two hours per day, absent an immediate and substantial threat of harm or a youth's refusal to come out of his or her room.

Pepper spray

Plaintiffs: Except in emergencies, medical and mental health staff, if on site, must be present when chemical agents are used against youths. If medical and mental health staff are not on site, they should be consulted as soon as practicable.

Defendants: Do not agree that medical and mental health staff need to be present, but do agree they should be consulted as soon as practicable.

Other:

Plaintiffs: The schools should implement a positive behavior program management program within three months.

New staff should be trained in de-escalation techniques.

The schools should establish training protocols to ensure staff is trained in adolescent development, background characteristics of youth, signs of mental illness, dealing with youth with post-traumatic youth, and working with youth with mental illness.

Defendants: Establishing such a programs and training is not necessary to the terms of the injunction.

The state's Lincoln Hills and Copper Lake juvenile prisons must reduce to five to seven days the maximum time incarcerated youths are held in solitary confinement, a federal judge told lawyers involved in a lawsuit over abusive conditions at the institutions.

State defendants in the case, including Secretary of Corrections Jon Litscher, have admitted the schools held youth in solitary for more than 50 consecutive days. 

In addition, U.S. District Judge James D. Peterson wrote in a guiding order, "restrictive housing should not be routinely used for prehearing confinement." 

The prisons now hold youths in solitary confinement for days before even determining whether the young people should be punished through solitary confinement.

Peterson issued his order to assist attorneys working on a the terms of preliminary injunction to eliminate the worst conditions at the institutions,

Peterson listed a total of 11 points the defendants and plaintiffs in the case should consider as they try to agree on terms of the injunction. A proposal is due from the two sides on Friday.  The plaintiffs, current and former inmates of the schools, are represented by the American Civil Liberties Union of Wisconsin and the Juvenile Law Center, with pro-bono assistance from Quarles & Brady,

Peterson's points include:

• Limiting out-of-cell time to just one hour per day for youth in solitary confinement is "likely unconstitutional." 
• The prisons should not prohibit all interaction with peers or routinely mechanically restrain youths during their time out of solitary cells. Social and mechanical restraints "may be imposed only to the extent needed to protect the safety of youth or staff." 
• Adequate opportunity for physical exercise must be provided to those in restrictive housing. The converted cell in High Hall does not afford an adequate exercise space.  
• Youth in solitary should get their full rehabilitative and educational programming.
• The current rule limiting inmates to having just one book while they are in solitary "is excessive." Solitary conditions should be modified to "reduce isolation and provide adequate stimulation."
• The prisons must develop a plan to reduce or eliminate the sue of pepper spray. "The reasons for past excessive use of OC (pepper spray) should be systematically evaluated, reported, and remediated. ...If OC is to be used, the conditions under which is it to be used must be more narrowly defined."
• The proposed schedule for implementing the terms of the injunction "should recognize the urgency of remediating what the court has found to be acute harm to the youth at the institution." 

The American Civil Liberties Union of Wisconsin last week filed a few pictures showing how youths in solitary confinement are treated when they are actually let out of their cells.

The pictures were filed in support of a request by the ACLU and the for a temporary injunction to halt the use of pepper spray, mechanical restraints, and solitary confinement except under very limited, urgent situations.

The defendants in the suit, meanwhile, admitted holding youth for more than 50 consecutive days in solitary confinement and pepper spraying youths who were in their cells or in mechanical restraints, among many other things. The document of admissions is at the bottom of this post.

The ACLU, along with the Juvenile Law Center and with pro-bono assistance from Quarles & Brady, is suing on behalf of past and current inmates of Lincoln Hills and Copper Lake youth prisons, alleging the extreme disciplinary practices at Lincoln Hills and Copper Lake violate the inmates' constitutional rights against unreasonable searches and cruel and unusual punishment and their right to due process. The suit alleges the institutions make routine use of strip searches, chemical sprays, solitary confinement and mechanical restraints.

The case has been assigned to U.S. District Judge James D. Peterson.

Lawyers for defendants in the case argued in a separate document that a court-ordered limit on the the use of pepper spray, solitary confinement, and mechanical restraints could actually hurt efforts by state and school officials to cut back on those things.

The defendants, including Department of Corrections Secretary Jon E. Litscher, also object to the terms "pepper spray," "on the belt," and "solitary confinement." Those terms are all "obsolete" and "inaccurate," the defendants say. 

Gov. Scott Walker's proposal for a 21% increase in the amount charged to counties for housing youth in the state's two scandal-plagued juvenile prisons "is moving in exactly the wrong direction," County Executive Chris Abele said Wednesday.

Walker's budget proposes raising the fee from the current rate of $292 per child per day to $344 on July  1 of this year and to $352 on July 1, 2018. That would increase the annual cost of holding a child at  Lincoln Hills School for boys or Copper Lake School for Girls from $106,580 now to $128,480 in the second year of the budget.

"Honestly, you don't have to be a Sherlock Holmes to figure out at least part of the motivation is the economy up in Wausau, because it sure as hell isn't helping Milwaukee," he said. 

Lincoln Hills and Copper Lake are about 30 miles north of Wausau. Both schools have been under federal investigation for possible criminal and civil rights abuse of inmates. The ACLU of Wisconsin, along with the Juvenile Law Center and with pro bono help from the Quarles & Brady law firm, have filed a federal court lawsuit over conditions and alleged abuse at the schools, The suit, filed on behalf on former and current inmates, seeks class action status. 

The plaintiffs also are seeking a preliminary injunction to temporarily halt most use of solitary confinement, pepper spray and use of restraints. 

The county for six years has been reducing the number of youths it commits to the schools, he said. As of As of March 30, there were a total of 84 boys from Milwaukee County at Lincoln Hills and seven girls at Copper Lake, according to a county report. 

"We spent a year-and-a-half trying to convince the state to do something smarter," Abele said during a meeting of the Milwaukee Community Justice Council. during a meeting of the Milwaukee Community Justice Council. The council includes representatives of many key actors of the justice system who collaborate in an effort to improve the system and its components.

County officials believed at one point that the state was interested helping establishing a youth correctional facility in the Milwaukee area, the exec said.

"We'll do it right here and have better programming," Abele said. Instead, he said, Walker proposed adding staff to the existing schools and charging counties more to use them.

Lincoln Hills' own figures show the institution has a 70% to 75% recidivism rate, he said. Offenders who commit less serious crimes associate at the facility with more serious criminals, and become worse offenders themselves, he said.

"We are dramatically and expensively making it more likely that people are going to commit crime. ... It's just a poster child for everything that's wrong," he said.

Legislation offered by State Sen. Leah Vukmir and State Rep. Joe Sanfelippo (R-West Allis) that would send more children to the youth prisons "would move us in directly the wrong direction," he said.

"There's a lot of legislation that everyone here would love to have Madison pass," he said. "We spend a lot of time trying to do it and, you know, I can tell you why we're supportive of getting it passed; you'd have to ask them why they're not."

The ACLU asked a judge Wednesday to temporarily ban the use of solitary confinement "for disciplinary or punitive purposes" at the state's Lincoln Hills and Copper Lake juvenile prisons.

In a motion for a temporary injunction, the ACLU of Wisconsin also asks the federal court to "eliminate the routine use of mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering youth to a table during their only time out of their cells."

Joining the ACLU in its filing was the Juvenile Law Center, with pro-bono assistance from Quarles & Brady. 

It also seeks to "eliminate the use of pepper spray for punishment and behavior management or control."

Exceptions to the prohibitions would be allowed to prevent imminent and serious harm to people.

"Plaintiffs file this motion for interim relief due to the extreme and ongoing danger posed 
by these practices," the ACLU, Juvenile Law Center and Quarles & Brady said in a brief accompanying the motion.

“Isolating, handcuffing and pepper spraying children is not only dehumanizing and traumatizing, it is also unnecessary and counterproductive," Larry Dupuis, Legal Director of the ACLU of Wisconsin, said in a prepared statement..  "As experts in the field show, these practices actually undermine institutional safety and security.  As a result, most juvenile correctional facilities no longer use pepper spray, restraints or punitive solitary confinement.”

The ACLU has filed suit on behalf of past and current inmates of the two facilities alleging the extreme disciplinary practices at Lincoln Hills and Copper Lake violate the inmates' constitutional rights against unreasonable searches and cruel and unusual punishment. The practices also violate the youths' due process rights, according to the suit.. The case has been assigned to U.S. District Judge James D. Peterson.

The brief says that solitary confinement is known to cause psychological harm to adolescents.  

"Research on adolescent development makes clear why juvenile solitary confinement is 'uniquely harmful'," the brief says, adding, "Stress derails brain development, and for a juvenile, simply being placed in isolation – the utter helplessness of it – is enormously stressful."

The brief says pepper spray use is on the upswing. "The use of pepper spray at LHS/CLS has increased dramatically since the beginning of 2016," the brief says. LHS/CLS (Lincoln Hills School and Copper Lake School) staff documented 198 pepper spray incidents in the first 10 months of 2016 – nearly 20 deployments per month, compared with 45 incidents in all of 2015."

Several juveniles have displayed symptoms such as difficulty breathing or coughing blood after being exposed to pepper spray, the brief says.

“These practices are so harmful that we’re taking decisive action to stop them immediately,” said Jessica Feierman, Associate Director of Juvenile Law Center. “Putting children in solitary, shackling them to tables, and pepper spraying them isn’t rehabilitation – it’s abuse.”

Vincent Schiraldi, a juvenile corrections expert from the Harvard School of Government, describes Wisconsin's practices as “excessively restrictive" and "a substantial departure from accepted professional standards, practice and judgment," according to the brief.

The full brief is below. 

Boys and girls at the Lincoln Hills and Copper Lake youth prisons are strip searched frequently, sometimes in the sight of other inmates, according to new allegations in a federal court lawsuit over conditions in the two facilities.

"In the LHS (Lincoln Hills School) solitary confinement wings, defendants have strip searched youth where boys across the hall could see the youth being strip searched," the complaint says. "In CLS (Copper Lake School), defendants have strip searched youth in a room that has a mirror, so that people outside the room could see the girl being strip searched, and in a room with a camera that records video viewable by guards, including male guards."

The amended complaint, filed Monday by the ACLU of Wisconsin on behalf of inmates and former inmates at the schools, also alleges that guards use pepper spray so indiscriminately that it affects inmates up and down corridors. The suit seeks class action status. (The original complaint is covered here and here.)

The suit alleges violations of the plaintiffs' Fourth Amendment right against unreasonable search; Eighth Amendment right against cruel and unusual punishment; and 14th Amendment right to due process.

Part 2 of 2  You can read Part 1 here.

Below is our second offering of excerpts from the ACLU's lawsuit filed against State Department of Corrections officials that alleges shocking treatment of juveniles at the Lincoln Hills and Copper Lake juvenile prisons. The state has not yet responded. 

Lincoln Hills (LH) and Copper Lake (CL) hold 150-200 youth as young as 14 years old, according to the suit.

Yesterday's excerpts dealt with the prisons' use, overuse, and abuse of solitary confinement. Today we'll take a look at allegations involving pepper spray.

And here's an interesting thing -- the Department of  Corrections' policy allows the use of chemical chemical agents "to 'enforce a DOC rule, a posted policy or procedure or an order of staff member,' even when there is no risk of "harm to staff or youth or danger to the security of the institution," according to the ACLU suit. 

The state's administrative code, meanwhile, prohibits using chemical agents as discipline.

"A juvenile may not be disciplined by corporal or unusual punishment, intentional humiliation, mental abuse, interference with the daily functions of living, the use of chemical agents, the use of restraints such as handcuffs or shackles, or by placement in a cell designed for the administrative or disciplinary segregation of adults." (Wis. Adm. Code § 347.47 (2010).

Excerpts

"...guards at LHS and CLS have used pepper spray on the youth in their care at least 198 times in the period January through October 2016.

Guards at LHS and CLS use several different forms of pepper spray on youth in their custody, including “Bear Mace,” which is marketed as being able to protect hikers from charging bears. Other types of pepper spray in use at LHS and CLS include Phantom and Ghost. Some pepper sprays are used to create a cloud which will fill the youth’s cell. Others are sprayed directly at the face or body of a youth.

After youth are pepper sprayed, they are routinely locked into a cage in a shower. The effects of the spray are temporarily worsened by exposure to water and spread to sensitive areas such as the groin, causing intense pain. To avoid this acute increase in pain, some youth
choose not to turn on the shower, but as a result the spray remains on their skin, prolonging the duration of their pain.

Youth at CLS and LHS have described being pepper sprayed as “feeling like you were hit a hundred times.” The effects of the spray can last for days, and are reactivated by water even days later, such as when the child washes his or her face.

Part 1 of 2

​Below are excerpts from the ACLU's lawsuit against State Department of Corrections officials that alleges shocking treatment of juveniles at the Lincoln Hills and Copper Lake juvenile prisons. The allegations are deeply, deeply disturbing. The state has not yet responded.
​
Lincoln Hills (LH) and Copper Lake (CL) hold 150-200 youth as young as 14 years old, according to the suit.

Excerpts

Currently, Wisconsin’s juvenile corrections officials lock up approximately 15 to 20% percent or more of the facilities’ young residents in solitary confinement cells for 22 or 23 hours per day. Many of these children are forced to spend their only free hour of time per day outside of a solitary confinement cell in handcuffs and chained to a table. Officers also repeatedly and excessively use Bear Mace and other pepper sprays against the youth, causing them excruciating pain and impairing their breathing. ...

A cell in the segregation units is approximately seven by ten feet. The cell is entered through a large metal door which swings out. The door has a small glass window about nose height and one or two slots through which food trays are passed. Youth extend their forearms through the door slot before and after being placed in the cell so that the guards may lock or unlock the handcuffs they must wear when they are out of their cells. The single window to the outside is covered with bars. ...

Boys receive only a small amount of toilet paper and must request more when they need it. Boys also may not flush their toilets themselves, but must ask the guards to turn the toilet on to allow them to flush it. Because the girls’ solitary cells do not have a sink or toilet, the girls must push a call button and ask guards to be escorted to the bathroom. Guards sometimes take a long time to respond to requests to use the bathroom. 

​Defendants also significantly limit the education youth held in solitary confinement receive. In the general population, the youth typically receive four to five hours of education Monday-Friday.

​In solitary confinement, Defendants’ pattern and practice is to reduce this educational programming to a single hour outside the cell with a teacher who comes to the segregation unit and meets with about three youth at a time. During this time, they may be locked to a desk in the classroom. 

In addition, when Defendants put youth into segregation, they revoke access to the very programs which might help and rehabilitate the youth, such as Aggression Replacement Training (ART) and the Juvenile Cognitive Intervention Program (Phases I and II). If a youth misses more than a few sessions of any such program because he or she is in solitary confinement, Defendants require the youth to start the program over from the beginning. 

Solitary confinement is particularly damaging to youth, who are still developing
physically, psychologically, and socially.

Youth in segregation face a significant risk of serious mental harm. Solitary confinement negatively impacts juveniles by perpetuating, worsening, or precipitating mental health concerns, including but not limited to post-traumatic stress disorders, psychosis, anxiety disorders, major depression, hyper-vigilance, agitation, general lack of trust, suicidal ideation, suicidal intent, self-mutilation, and suicidal behavior.

The National Commission on Correctional Health Care (“NCCHC”), for example, issued a statement establishing that juveniles should not be placed in solitary confinement for any duration ...

The USDOJ’s Office of Juvenile Justice and Delinquency Prevention Standards for the Administration of Juvenile Justice ... provide that no juvenile should be placed in room confinement for more than twenty-four hours.