By Gretchen Schuldt
A federal judge has given the ACLU and its partners the go-ahead to argue that juveniles sentenced to life without a meaningful chance at parole are denied their constitutional right to a jury trial.
It is a new argument in the national battle over juvenile life sentences and one that, if successful, would lead to "significant extensions of current law," according to U.S. District Judge James D. Peterson, who is presiding over the case.
The ACLU of Wisconsin brought the class-action lawsuit in April on behalf of juvenile lifers. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates.
The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.
The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.
Peterson previously granted the ACLU's request to pursue the Eighth and Fourteenth Amendment arguments, but initially delayed his ruling on the jury trial claim.
By Gretchen Schuldt
Witnesses said Alphonso James was the man they saw with Delbert Pascavis or outside Pascavis' house the night he was murdered in July 1985.
James' friends, though, swore he was with them at those times.
Both things cannot be true. The jury believed the prosecution witnesses and James went off to prison for the next 31 years. To this day, James says he is innocent; he says he did not kill Pascavis.
Mistaken eyewitness identifications are a huge problem. The Innocence Project says they were involved in 71% of the more than 360 wrongful convictions in the United States later overturned by post-conviction DNA evidence.
After the Pascavis homicide, witnesses gave varying descriptions of the man they identified as James. One said he was in his late 20s to early 30s, 6' 1"-6'2', and 190-200 pounds. Another said he was about 25 and 5'5" to 6" tall.
James was 17, 5'9", and 154 pounds.
The witness accounts and James' confession, which he gave after more than seven hours in custody without a lawyer and almost immediately repudiated, were the key elements in his conviction.
One witness told police she observed Pascavis and James together starting shortly after 4 p.m. and saw them together "throughout the evening hours."
At one point, they were sitting on the porch and sharing a bottle. "She thought it was beer or something else, because the longer they talked, the louder they got," according to a police report.
The witness, who did not testify in court, told police the last time she saw Pascavis alive was about 11 p.m. July 26 and he still was with James.
The witness identified James from police photos. She could not pick him out of line-up, however.
James' girlfriend, Patricia Lewis – the two had a child together – told police that he came to her home about 8:30 p.m. the evening of the murder and left about 10:25 p.m.
By Gretchen Schuldt
Alphonso James kinda sorta confessed to murder.
At least he signed a paper on which a confession, written by a police detective, appeared.
James was 17 at the time, in 1985. An evaluation done by a clinical psychologist after his arrest for allegedly killing Delbert Pascavis put James' IQ at 75, considered borderline.
A Department of Health and Human Services evaluation after his conviction said this about James: "Alphonzo's (sic) Stanford Achievement Test scores indicate the possibility of functional illiteracy....A GED (general equivalency degree) may be grandiose."
At the time he signed the paper, he had been in custody for more than seven hours and was questioned without a lawyer. James says for part of that time the police took his clothes and left him naked. Police officers at James' 1986 trial denied that.
James quickly repudiated the confession and said, as he had earlier, that he did not kill Pascavis. Trial testimony indicates that police questioning of James was, at best, of highly questionable thoroughness. More on that later.
The police interviews leading to the alleged confession were not recorded. Police in those days objected strongly to the very idea.
False confessions, especially among the young, are not unusual. Of 130 murder convictions reversed on DNA evidence as of 2018, 81, or 62 percent, involved false confessions and 40, or 31 percent, involved eyewitness misidentifications, according to the Innocence Project.
When he signed the confession, James testified, "I was dizzy because I had a headache and stuff. I just got tired and I was hungry and I was sleepy because I haven't had no rest all that day."
There is no doubt that Alphonso James signed that paper.
"They start asking me did I do it," James testified at his trial. "I said no, I don't know nothing about it....(They said) they had fingerprints of me. I said I don't think. I said I know you couldn't have no fingerprints of me."
Witnesses testified they saw a Black man get into Pascavis' red car the night of the murder, try unsuccessfully to start it, then leave.
James' prints were not in the car.
Pascavis was seen the night he died sharing a bottle of whiskey with a Black man. Police found a whiskey bottle in Pascavis' apartment; There were prints on it that did not belong to Pascavis and did not match James'.
There were, in fact, no fingerprints connecting James to the crime.
"I told them after they just kept on asking me the same questions over and over, they said they wouldn't take no for an answer; so, I said, 'Well, if ...y'all said I did it, I did it.' " – Alphonso James
By Gretchen Schuldt
Somebody in Delbert Pascavis' flat strangled him to death with a bedsheet and wrapped a telephone cord around his neck, waist, and right foot.
There was no sign of forced entry into the house.
Before the night of July 26, 1985, Pascavis was a church organist, a tutor, a man active in the gay community. He was a case worker for Milwaukee County whose job included interviewing potential foster parents.
He was a member of the Bel Canto Chorus, the Felix Chorale, the Neighborhood Block Watch, and the Black and White Men Together, an organization that currently describes itself as a "gay, multiracial, multicultural organization committed to fostering supportive environments wherein racial and cultural barriers can be overcome."
He also was "quite a drinking man," his landlord told police, according to a police report.
Pascavis "was a partier and had lots of different people coming and going at all times of the day and night....," the report said.
He was popular in the neighborhood and never turned anyone away from his house, the landlady told police. If a visitor brought a friend along, Pascavis would welcome that friend as well.
His landlord "also stated that most of his guests were young black males in their twenties," she said.
Pascavis was with a black man the night he was killed, witnesses said. Some later identified that male as Alphonso James, but those identifications were questioned later by the Wisconsin Innocence Project.
Another witness described the Pascavis' companion that night as a black male in his late 20s or early 30s, about six feet, one inch tall and 190-200 pounds.
James was 17, five feet, nine inches tall and weighed 158 pounds.
As soon as his body was found on the morning of July 27, 1985, Pascavis became a homicide case, the property of the justice system.
Soon enough, the life of Delbert Pascavis would be overshadowed in the justice system almost completely in by the next act: the prosecution of Alphonso James.
Next: The confession
By Gretchen Schuldt
Alphonso James was arrested for murder in 1985 when he was 17 years old, was sentenced to life in prison, and spent 31 years there for a crime he said he did not commit. This is part 2 of James' story. Part 1 is here.
Alphonso James was arrested two hours after the body of Delbert Pascavis was found and about 30 minutes after a man described by his neighbors as mentally unbalanced identified James as the killer.
James remembers the moment well.
"It was 11 o’clock in the morning," he said. "It was hot outside, my mother was in the kitchen cooking, and then, lo and behold, the police just pulled up in front of our house."
They took him into custody.
The next time he was free was 32 years later.
He thought at first his arrest was related to a fight he had with a friend. There was a juvenile arrest warrant out for him related to that incident, and James quickly admitted to his involvement in the stabbing.
At the police station, James said, he still wasn't aware he was in trouble for a murder.
Officers came into the interrogation room "and they would come in and asked me to remove clothes," he said in an interview. "They would get a flashlight and go over my body to see if there were any recent marks or bites and they didn't find anything. So finally they told me 'Well, we'll be right back.' So they removed all of my clothing and left me in the room with nothing."
During James' trial, police denied leaving him naked and said they brought him a change of clothing.
Eventually, James said, "They were questioning me about a murder. I said, ‘Well, I have no idea about a murder' and I told them the truth from day one. They asked me where I was at; I told them everything."
James was the main suspect in a murder because of a phone call to police from a 33-year-old man who dressed in western clothing and was known as "a person who spends a lot of time talking with the kids and is described as 'crazy,'" according to a police report.
"It should be noted that at the time I talked to (the man) he was wearing some type of western chaps that appeared to be vinyl and were black and red in color," an officer said in the report.
The man told police that two children told him that Alphonso James killed the "old man," meaning Pascavis.
An officer spoke to the father of those children and to other children and residents of the neighborhood. "I was unable to find any children in the area that would admit to speaking with (the man) this date relative to the allegations that Alphonzo (sic) James was the person responsible for killing the 'old man,' " the officer wrote.
That same day, another officer identified residents he believed could be capable of a crime like Pascavis' murder. The officer identified two brothers who lived a few doors away from Pascavis' home on N. Booth St. One of the brothers, according to a separate report, had hung out with Pascavis.
But James already was in custody.
Next: Who was Delbert Pascavis?
*Photo courtesy of Hupy & Abraham.
By Margo Kirchner
The U.S. Court of Appeals for the Seventh Circuit this week reinstated claims brought by two Iowa teens who alleged they were subject to excessive isolation and force when they were housed in Wisconsin’s Copper Lake youth prison for girls.
The suit named as a defendant the Iowa official who oversaw placement of Iowa youth in the Wisconsin facility. The opinion was written by U.S. Circuit Judge Joel M. Flaum, who was joined by U.S. Circuit Judges Daniel A. Manion and Ilana Diamond Rovner.
Iowa closed its female youth facility in 2014 and contracted with Wisconsin to house at Copper Lake girls found delinquent in Iowa courts. Iowa paid Wisconsin $301 per day per child.
Iowa declared Laera Reed and Paige Ray-Cluney delinquent and sent them to Copper Lake in 2015. The girls were 16 at the time.
Ray-Cluney says she spent five months in isolation from the end of June until December 15, 2015. Reed says that between August 2015 and February 2016 she spent between 64 and 74 days in isolation.
According to Reed and Ray-Cluney, isolation meant spending 22 hours per day in a seven- by ten-foot concrete cell. The cells were stained with urine and contained only a metal cot and thin mattress. A thick cage covered the one window, reducing the light passing through.
During their limited daily release from the cells, the girls were allowed only to shower, use the restroom, exercise for 15 minutes, clean their rooms, use 15 minutes to write a letter, or sit in chairs by themselves without speaking. They received little or no educational instruction.
Both girls attempted suicide.
In August 2017 Reed and Ray-Cluney sued Wisconsin’s Administrator of Juvenile Corrections and several Wisconsin officials associated with Copper Lake. In addition, Reed and Ray-Cluney sued Charles Palmer, director of the Iowa Department of Human Services.
Reed and Ray-Cluney filed their separate lawsuits in the U.S. District Court for the Western District of Wisconsin, alleging constitutional violations arising from excessive use of isolation cells and excessive force. They also alleged intentional infliction of emotional distress and negligence. Reed added violations of the Iowa constitution.
The Seventh Circuit appeal involved only the claims against Palmer relating to Copper Lake’s isolation cells. The plaintiffs did not allege that Palmer knew about any use of excessive force.
According to the complaints, Palmer contracted with Wisconsin to use the Copper Lake facility, retained legal custody of both plaintiffs, monitored and received reports about plaintiffs’ confinement at Copper Lake, and knew or should have known about Copper Lake’s use of isolation cells. Nevertheless, say the plaintiffs, Palmer failed to remove them from Copper Lake or ensure that Copper Lake properly trained and supervised its staff.
In district court, Palmer moved to dismiss based on qualified immunity. U.S. District Judge Barbara B. Crabb agreed with Palmer and dismissed all claims against him. Reed and Ray-Cluney appealed.
The plaintiffs’ claims against the Wisconsin defendants were not affected by Palmer’s dismissal.
Qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known about, the Seventh Circuit said in its opinion. The doctrine balances the need to hold public officials accountable for their irresponsible conduct and the need to protect them from liability when they perform duties reasonably.
Qualified immunity does not protect a public official from suit if a plaintiff shows that the official violated a constitutional right and that right was clearly established at the time of the challenged conduct. To be clearly established, the law must “be sufficiently clear that every reasonable official would have understood that what he is doing violates that right,” said the Seventh Circuit.
Judge Crabb believed that even taking the facts alleged in the complaints as true, no law clearly established what action was required of someone in Palmer’s position.
The Seventh Circuit held that dismissal was premature. It noted that because the qualified immunity defense depends on the facts of each case, dismissal at an early stage (before discovery) is unusual. Plaintiffs are not required to allege in their complaints detailed facts that anticipate or defeat a qualified immunity defense. Instead, said the court, the plaintiffs need to allege only enough facts to “present a story that holds together.”
The Seventh Circuit recognized that under an Eighth Amendment cruel-and-unusual-punishment test based on culpable and serious denial of life’s necessities, the plaintiffs’ allegations held up. The court pointed to a 1974 case involving use of corporal punishment and tranquilizing drugs at a juvenile institution and noted a recent case out of New York holding that juvenile isolation is likely unconstitutional under the Eighth Amendment.
Likewise, the Seventh Circuit found that plaintiffs’ allegations met the requirements of a more lenient Fourteenth Amendment due-process test for pretrial detainees. Under Supreme Court caselaw from the early 1980s, restrictions on liberty are permitted only if reasonably related to legitimate government objectives and not for punishment.
Thus, said the court, under either test case law clearly established that Palmer’s alleged conduct could violation the Constitution.
Crabb had found that unlike the officials in prior cases, Palmer did not himself oversee use of the isolation cells or operate the institution in which alleged abuse occurred. But the Seventh Circuit found that Palmer’s separation from the institution at issue and his lack of personal involvement in placing the girls in isolation did not alter the need for remand. The Seventh Circuit pointed to the special relationship created when a state removes a child from parental custody and to prior case law defining the right of a child in state custody not to be handed over to a custodian that the state knows is a child abuser.
On remand, Palmer may reassert other defenses to the case, including his argument that the Wisconsin federal court lacks personal jurisdiction over him. Further, Palmer may obtain qualified immunity on summary judgment if the facts fail to support the plaintiffs’ allegations regarding the extent of their isolation or Palmer’s level of involvement and knowledge.
“In the meantime, however,” said the Seventh Circuit, “this case is one that would greatly benefit from a more robust record.”
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.)
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.
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.
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.
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:
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.
Here are some of the things the defendants admitted (while maintaining their objections to the terms above), according to a court filing:
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