Judge: 'Ted Kaczynski has less restrictive confinement' than Lincoln Hills teen inmates

MADISON - A federal judge on Friday issued a sweeping decision to curb the use of solitary confinement, pepper spray and use of restraints at Wisconsin's teen prison complex, saying some substantial changes would need to be made quickly.  

U.S. District Judge James Peterson said the use of isolation as a form of punishment at Lincoln Hills School for Boys and Copper Lake School for Girls is "acute, immediate and enduring."

"Ted Kaczynski has less restrictive confinement than the youth at Lincoln Hills," Peterson said, referring to the Unabomber who is held at a federal supermax prison in Colorado.

Peterson, who questioned the abilities of top leaders at Lincoln Hills, made his ruling from the bench on the second day of a hearing in a lawsuit brought by teen inmates over operations at Lincoln Hills and Copper Lake, which share a campus 30 miles north of Wausau. The inmates are represented by the American Civil Liberties Union of Wisconsin and the Juvenile Law Center. 

Peterson directed the state Department of Corrections and the ACLU to come up with a plan for how and when substantial changes will be made. He will review their plan in two weeks and resolve any disputes over it. 

Peterson said he wanted quick changes at Lincoln Hills because the ACLU was likely to succeed with its argument that conditions at the prison violate the 14th Amendment’s guarantee of due process.

“I do find there is a right to rehabilitation and I think the use of solitary confinement violates it,” he said.

The lawsuit is one of several challenges over the prison faced by Gov. Scott Walker, who in his six years as governor has never visited Lincoln Hills. Two other lawsuits have been filed and the prison has been the subject of a criminal investigation for 2½ years for prisoner abuse and child neglect.

Walker's team has insisted it has overhauled the way the prison is run by installing new leaders after the prison was raided by 50 agents and attorneys in December 2015. But the judge said there were few signs that substantive reforms have been made.

“It’s not enough for them to have good intentions,” Peterson said. “There really is zero effort going on (to reduce solitary confinement).”

The judge called into doubt the abilities of the top leaders at Lincoln Hills, noting Security Director Brian Gustke had no experience in juvenile corrections before taking his job at Lincoln Hills a year ago. Superintendent Wendy Peterson has an education background and has been at Lincoln Hills for six years, but has never worked at a well-run juvenile prison, the judge said.

The two “don’t have experience to turn around a facility that is failing like Lincoln Hills,” the judge said.

Corrections Secretary Jon Litscher "has full confidence in the Division of Juvenile Corrections to continue making necessary reforms," Department of Corrections spokesman Tristan Cook said by email. But Cook declined to answer whether Litscher specifically stood by the prison's superintendent and security director.

"DOC has consistently worked to identify and implement substantial reforms at Copper Lake School/Lincoln Hills School," Cook wrote in his email. "We look forward to using the next two weeks to further these efforts."

Judge Peterson noted most states don’t use solitary confinement as a form of punishment for juvenile inmates. Wisconsin policy allows inmates to be held in isolation for up to 60 days, but sometimes inmates stay there for longer than that.

“Wisconsin is an extreme outlier in terms of its policy,” he said.

Lengthy stays in solitary confinement at Lincoln Hills are “well beyond national norms even for states that permit the use of solitary confinement," the judge said.

Inmates at Lincoln Hills are punished with solitary confinement when they violate prison rules. Peterson said the maximum sentence for rule violations should be five to seven days, rather than 60 days.

When in solitary confinement, inmates must be given more time out of their cells and they should not routinely be handcuffed to belts around their waists when they are out of their cells, he said.

Typically, inmates are immediately put in solitary confinement when they are accused of violating rules as they await hearings to determine whether they broke the rules and what their punishments should be. Peterson said they should no longer be put in solitary confinement as they await those hearings.

Inmates could still be put in solitary confinement when they are deemed to be security risks, the judge said.

Stays in restrictive housing cannot interfere with the education and programming the inmates are receiving, he said.

Peterson also found the prison could not have a blanket rule that certain inmates must be restrained any time out of their cells. Handcuffs and waist belts can be used only when a determination is made on a case-by-case basis that an inmate is a security threat, he said.

The prison must also limit the times that it uses pepper spray, he said, but added the prison may need some time to implement that change.

Testimony this week showed 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, according to Vincent Schiraldi, a criminal justice fellow at the Harvard Kennedy School who interviewed Lincoln Hills inmates for the ACLU. 

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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.