Federal judge signals he'll order major changes at Lincoln Hills because of treatment of teen inmates

MADISON - A federal judge signaled Thursday he is likely to force major changes at Wisconsin's juvenile prison, saying it appears the state excessively uses solitary confinement, pepper spray and handcuffs on teen inmates.

"I think it’s very clear Lincoln Hills is a very troubled institution and that shouldn’t come as a surprise to anyone," U.S. District Judge James Peterson said at the end of a daylong hearing. 

"I think the problem is the general perspective of the institution has been essentially to run it like an adult prison and I think there really has been an extensive lack of programming and an extensive lack of mental health care provided to the residents."

Peterson said he expects to issue a ruling from the bench Friday after hearing closing arguments about Lincoln Hills School for Boys and Copper Lake School for Girls, which share a campus north of Wausau.

He characterized as excessive the use of pepper spray, isolation and restraints.

"I do see that it is really overused and I’m not completely convinced that the institution has a constitutionally proper perspective on the use of it," he said of pepper spray. 

He indicated, however, that he would not grant the teen inmates who brought the lawsuit everything they wanted. For instance, he said he did not think the prison had treated the inmates with deliberate indifference. 

Separately, the complex has been under criminal investigation for 2½ years for prisoner abuse and child neglect.

The lawsuit, brought with the assistance of the American Civil Liberties Union of Wisconsin and the Juvenile Law Center, is seeking to curb the use of pepper spray, solitary confinement and handcuffs and other restraints. Thursday's hearing was held to decide whether the judge should immediately curb those practices with an injunction.

Wendy Peterson, the superintendent at Lincoln Hills, testified that prison officials are working daily to reduce the use of those practices. 

"We realize that it's not the best thing for kids," she said of the use of pepper spray. 

Pepper spray has been used at the prison complex about 20 times a month, but that was cut in half in May and has been used just four times so far in June, she testified.

The judge, however, noted pepper spray was deployed 45 times in 2015 but 220 times in 2016. 

"That is not a trend that is on the front lines of reform," he said.

Testifying for the ACLU was Vincent Schiraldi,  a criminal justice fellow at the Harvard Kennedy School who previously ran the juvenile corrections system in Washington, D.C. 

He noted that one inmate at Lincoln Hills was blasted with pepper spray 17 times and another 19 times. Some see getting sprayed as a way to show resistance to the prison, he said.

"The kids talked about eating pepper spray," Schiraldi said. "There was a point where it became almost a macho badge of courage."

Teen inmates in solitary confinement sometimes make the "irrational calculation" to incite guards to use pepper spray because it gives them some form of attention after being ignored for long stretches, he testified.

"It's negative stimulation, but it's the only stimulation they're getting when they’re locked down," he said. 

The ACLU showed two videos of teen inmates getting pepper sprayed. In one, an inmate in November had pushed his hands through the food slot in his door and refused to pull them back in his room.

Six guards wearing riot gear surrounded his door and repeatedly asked him to pull his hands back, telling him he would be sprayed if he did not follow their commands.

They sprayed him through the food slot but he kept one hand out of the food slot and appeared to signal that he wanted to be sprayed again. He was.

Before the pepper spray was deployed the first time, an inmate in a nearby cell yelled that he wanted to be moved before the spray was deployed because he had asthma. There appeared to be no effort to remove him from the area.

 “I can’t take that spray,” he said.

The other video, which included no audio recording, showed an inmate who was refusing to go into her room after a disagreement over whether she was allowed to have chalk.

She was sprayed twice and taken to the ground by guards after she defied orders to go to her room. One of the sprayings occurred after she was on the ground.

“It doesn’t make the youth behavior better,” Schiraldi said of the use of pepper spray. “It may be making youth behavior worse."

Those bringing the lawsuit initially asked to close the hearing while the videos were shown because they had not had time to blur the inmates' faces or edit out times when their names were used.

Media outlets objected to the proposal and the judge ruled the videos could be shown in open court provided those who watched them signed statements they would not disclose the names of the juvenile inmates. 

The Milwaukee Journal Sentinel, Wisconsin State Journal, The Associated Press, Wisconsin Newspaper Association and Wisconsin Freedom of Information Council objected to the effort to prevent the public from seeing the videos.

"It’s important that we know what goes on in the courts and it’s important that we know what goes on at Lincoln Hills," Judge Peterson said. 

While the judge raised significant concerns about how Lincoln Hills is run, he also said he was reluctant to find that all use of solitary confinement as a form of punishment violates the rights of inmates in all cases.

"It’s hard for me to rule that it’s just per se unconstitutional,"  he said.

Schiraldi noted one inmate spent 72 days in solitary confinement and was denied visits from a psychologist during that time. 

"That's a lot of time alone," he said. "(There) shouldn’t be mind-numbingly long periods of time when they’re in solitary confinement."

At any given time,15% to 20% of the teen inmates are held in solitary confinement as a form of punishment. That's "very high" compared to other states, Schiraldi testified. 

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Inmates in solitary confinement remain in their cells for 20 hours a day or more with the lights on at all hours. Some of those inmates are required to have their hands cuffed to belts around their waists whenever they are out of their cells.

Brian Gustke, security director at Lincoln Hills, acknowledged some inmates get no time out of their cells. He blamed it on staffing shortages that result in guards being forced to work shifts in the solitary confinement area even though they don't regularly work in that area.

"Some of our staffing patterns haven’t been the best," Gustke said. "It just leads to confusion on everybody’s part, staff as well as the youth."