J.J. v. Litscher

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Juvenile Law Center, with co-counsel ACLU of Wisconsin and Quarles & Brady, LLP, filed a federal civil rights class action lawsuit in the U.S. District Court for the Western District of Wisconsin against Wisconsin juvenile corrections officials and administrators of two correctional facilitates, the Lincoln Hills School for Boys and the Copper Lake School for Girls.

Collectively, the facilities hold approximately 165-180 boys and girls. Most are African-American youth from Milwaukee, which is 215 miles away from the facilities. Both facilities excessively use solitary confinement, restraints, and pepper spray on youth.

Approximately 15-20% of the youth population in these facilities are in solitary confinement, isolated for 22 to 23 hours per day in a seven by ten-foot cell. Youth are often sent to solitary for 30 to 60 days at a time, and many are forced to spend their one free hour outside of solitary “on the belt,” meaning that they are in handcuffs attached to a belt. Often they are also chained to a table. While in solitary, youth only get one hour of education per day and are even denied therapeutic programs that are supposed to help rehabilitate them. Officers at these facilities routinely use “Bear Mace” and other pepper sprays on youth for nonviolent infractions. The burning and temporary blindness can last for days, and guards fail to appropriately help youth who have been pepper sprayed.

These practices are serious violations of the youth’s constitutional rights, including their rights to substantive due process, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, and their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment.

Juvenile Law Center, along with co-counsel, filed a motion for preliminary injunction in order to provide immediate relief to Wisconsin’s youth. Jessica Feierman, Associate Director of Juvenile Law Center, Laurence Dupuis, Legal Director of ACLU of Wisconsin, and Rachel Graham, Associate at Quarles & Brady, argued at the preliminary injunction hearing that the harmful, degrading, and unconstitutional practices daily perpetrated by the facilities are causing significant and lasting harm on the youth entrusted to their care. In an oral ruling on June 23, 2017, Western District Judge Peterson found that the use of solitary confinement, pepper spray and restraints at the juvenile facilities violate kids’ constitutional rights under the Eighth and Fourteenth Amendments. The court stated that young people have a constitutional right to rehabilitation, and it was being thwarted by these practices.

The court gave the parties two weeks to submit proposed terms of an injunction based upon its ruling, and then issued a preliminary injunction on July 10. The injunction requires sweeping changes to facility practices, including barring the use of solitary confinement for minor infractions or non-violent offenses, restricting placement of youth with mental health conditions in solitary, significantly limiting the permitted periods of isolation, and ensuring that youth in solitary receive education, rehabilitative programming, health services, and meaningful time out of their cells. The injunction also significantly curtails the use of pepper spray and mechanical restraints, and it outlaws the facility’s practice of tethering youth to fixed objects, such as tables, when they are out of their cells.

In September of 2017, the court certified class as: “All persons who are now, or in the future will be, confined at Lincoln Hills School for Boys and Copper Lake School for Girls.” In January 2018, the state of Wisconsin passed legislation to close the two controversial facilities by 2021.

On June 1, 2018, the State of Wisconsin agreed to settle the lawsuit. Key terms of the settlement include: fully eliminating punitive solitary confinement within 10 months, fully eliminating the use of pepper spray within 12 months, strictly limiting the use of all forms of mechanical restraints, and prohibiting strip searches without individualized probable cause. Additionally, all staff at the facilities will receive de-escalation training by a nationally recognized provider and the facilities will be regularly monitored by an individual with expertise in juvenile corrections. “While the biggest step forward for youth is the closure of Lincoln Hills and Copper Lake, today’s settlement is also an important win,” said Jessica Feierman, Associate Director of Juvenile Law Center. “The agreement establishes crucial safeguards against the harms of solitary confinement, restraints, pepper spray and strip searches.”