Wisconsin Juvenile Justice’s Use of Solitary, Pepper Spray Violates Constitution, Lawsuit Says

A class-action lawsuit announced today accuses the Wisconsin Department of Corrections of housing nearly one-fifth of its juvenile wards in solitary confinement, often for unnamed or minor offenses, and wantonly using chemical restraints on incarcerated youths.

“If a parent locked a child in a room even for a day or sprayed them with Bear Mace or pepper spray, we would all recognize it as child abuse,” said Jessica Feierman, associate director of the Juvenile Law Center, which brought the lawsuit along with the ACLU of Wisconsin and the law firm Quarles and Brady. “Research confirms that solitary confinement causes lasting and devastating psychological harm. Pepper spray causes excruciating pain and temporary blindness. The children of Wisconsin deserve better.”

The lawsuit alleges that of the juveniles incarcerated in two Wisconsin facilities – the Lincoln Hills School for Boys and the Copper Lake School for Girls – between 15 and 20 percent are in a seven-by-ten solitary confinement cell. Those placed in solitary are usually confined for nearly the entire day, with an hour or two of exercise that also might be limited with handcuffs and other restraints.

The legal action today was hardly surprising; the Justice Department has been investigating the treatment of juveniles at Lincoln Hills and Copper Lake for more than a year.

The Department of Corrections had no immediate response to the lawsuit. “The department will be reviewing the suit,” said spokesperson Tristan Cook.

“We hoped changes at the local level” would push state facilities to reform, said Laurence Dupuis of the ACLU of Wisconsin. “But we continue to hear very disturbing stories about the treatment of the children there.”

Often, the complaint alleges, the decision to segregate a youth occurs in regard to minor transgressions or incidents that are never documented. “C.M.,” one of the plaintiffs in the lawsuit, was placed into solitary twice in his first six weeks in the facility. There was no explanation given for the first instance; the second, he was told, was for “misconduct.”

Dupuis said short stays in solitary generally last seven days; longer ones last for a month or more. And in an illogical twist of practice, any behavioral intervention a youth was receiving was started again from the beginning upon their return from solitary. From the lawsuit:

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.

Little is known beyond anecdote and projection about the potential class, which currently would include 165 youths. For instance, it is unclear what percentage of juveniles experience solitary, or whether the practice is employed more on the older or young wards of the facilities.

“One thing we hope to accomplish through this lawsuit is to gain discovery to learn more about how widespread the practice is,” Feierman told YSI in an e-mail today.

What is clear about the facilities’ populations: Both are almost entirely filled with black youths from Milwaukee, which is more than 200 miles away.

The lawsuit also alleges a capricious use of pepper spray and Bear Mace, a chemical sold to hikers to fend off bears. The ACLU documented 200 uses of chemical sprays in the first 10 months of 2016. From the complaint:

Guards at LHS and CLS have a pattern and practice of using pepper spray unnecessarily and unreasonably on youth for minor non-violent infractions, such as refusing to go into their rooms, refusing to leave their rooms, covering up the cameras in the segregation unit, and failing to follow commands.

In fact, Defendants’ policy expressly permits use of pepper spray to “enforce a DOC rule, a posted policy or procedure or an order of staff member,” even without any risk of harm to staff or youth or danger to the security of the institution.

Plaintiffs argue that the solitary and chemical restraint practices violate the Eighth and Fourteenth Amendment rights of the juveniles in both facilities.

It is, to Youth Services Insider‘s knowledge, the first class-action suit on the use of solitary in juvenile facilities since the launch last year of a national campaign to end the practice. In April, a group of advocacy groups formed Stop Solitary for Kids, a national campaign that hopes to assist in local legal victories such as this and eventually make the case that solitary confinement should be an abolished practice in juvenile justice.

Juvenile Law Center is also involved with the ACLU’s National Prison Project, a countrywide effort to abolish solitary confinement in all incarceration settings. Two years ago, the center settled a case against the New Jersey Commission on Juvenile Justice regarding its solitary practices.

Jeffery Roman, a community organizer for Youth Justice Milwaukee and a member of Milwaukee’s Equal Rights Commission, said reforms of Lincoln Hills and Copper Lake would not address the problems. Instead, he argued, the facilities should be closed and replaced with community-based programs closer to Wisconsin’s six biggest counties.

Dupuis said the lawsuit is “not initially asking the court to close Lincoln Hills” because it’s “not clear it’s something a federal court would do.”

In December, Gov. Scott Walker (R) said he was open to a plan to close Lincoln Hills, but replace it with another youth prison. Another option: re-opening the Ethan Allen School, a juvenile facility closer to Milwaukee that was mothballed by DOC in 2011.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.