Advocates applaud closing; serious concerns about securing safe and rehabilitative programs and services for youth remain

Milwaukee, WI (March 22, 2018) –  The Wisconsin State Legislature passed a bill, which Governor Walker has pledged to sign, to close Lincoln Hills and Copper Lake, two controversial and beleaguered youth correctional facilities, by January 1, 2021.  This move comes after years of federal and state investigations into the facilities and a class action lawsuit filed by the ACLU of Wisconsin and Juvenile Law Center, with pro-bono assistance from Quarles & Brady. The bill requires the state to establish new Type 1 juvenile correctional facilities and authorizes counties to establish secured residential care centers for children and youth.

“Closing Lincoln Hills and Copper Lake is the right move,” said Jessica Feierman, Associate Director of Juvenile Law Center. “Unfortunately, the current legislation also directs too many resources into secure care for young people.  Now the key for all stakeholders – including the study committee created by the Act, the legislature, and the public – will be to ensure that the harsh and unconstitutional practices used at Lincoln Hills and Copper Lake are never replicated.”

“The best way to do this is to ensure that as many young people as possible are in their own homes receiving any needed services,” said Feierman. “Any youth placed outside the home should be in as family-like settings as possible.  Policies should be guided by evidence about what works and responsive to the input of youth in the juvenile justice system, their families, and their communities.”

Children at Lincoln Hills and Copper Lake have routinely been placed in solitary confinement, put in mechanical restraints, pepper-sprayed, and strip-searched. Prior to state and federal raids on the facility in December 2015, staff also regularly physically abused youth in the facility, even breaking their arms and legs in some cases. Horrific conditions persisted – approximately 15 to 20% percent the young residents are confined in seven by ten-foot solitary confinement cells for 22 or 23 hours per day.
 
“While this is a step in the right direction, we will continue to pay attention to how young people are treated so long as they remain at the Lincoln Hills and Copper Lake Schools and while they are being moved from the current facilities,” said Larry Dupuis, Legal Director of ACLU of Wisconsin. “Our lawsuit is against the Department of Corrections officials and we will continue to fight to ensure that any resolution of our lawsuit protects the children in the custody of the state.”

This bill also creates a Juvenile Corrections Study Committee, which is required to research and develop recommendations for locations of Type 1 facilities, services, and programming for children and youth and DOC’s rules for governing detention centers. The bill requires the committee to submit these recommendations to DOC no later than July 1, 2020.

Juvenile Law Center and ACLU of Wisconsin’s complaint asserted that these unconstitutional practices violated children’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 to the U.S. Constitution.

This is what we told all of the legislators who asked us about AB 351 / SB 279 regulating the use of law enforcement body cameras:

What the law does on video retention and video availability is generally good.  It is a step in the right direction.

However, the ACLU has some concerns, because the bill is not very comprehensive for a police body camera bill.  Many critical issues are kicked down the road to police departments, and that is not the best way to ensure good, consistent, and well-considered policies.  The ACLU model bill and New Hampshire police body camera law offer examples of a thorough policy.

Our biggest concern is subsection 3(c).  Requiring written permission from every person in a video who is identifiable (as well as the property owner) to access to the video will permit police to block access to most videos, because people will simply not respond to the police permission letters.  Requiring people to state an objection is still not good, but is better than a law that relies on people responding to government mailings that do not personally affect them – that is simply not going to happen.  The provision, in practice, will allow police to deny access to virtually all videos (not to mention it opens to door to people being paid money in return for not agreeing to provide permission, etc.).

One of the main reasons for making police videos in the first place is to provide an additional layer of public accountability.  It is critical to not prevent the public from being able to access these by creating additional layers of government bureaucracy.

We should be more inclined to pursue a privacy solution for videos (where it is in  the public interest to release them) to add some language like: Whenever doing so is necessary to protect personal privacy, the right to a fair trial, the identity of a confidential source or crime victim, or the life or physical safety of any person appearing in video footage, redaction technology may be used to obscure the face and other personally identifying characteristics of that person, including the tone of the person’s voice, provided the redaction does not interfere with a viewer’s ability to fully, completely, and accurately comprehend the events captured on the video footage.

This is what we told all of the legislators who asked us about AB 351 / SB 279 regulating the use of law enforcement body cameras:

What the law does on video retention and video availability is generally good.  It is a step in the right direction.

However, the ACLU has some concerns, because the bill is not very comprehensive for a police body camera bill.  Many critical issues are kicked down the road to police departments, and that is not the best way to ensure good, consistent, and well-considered policies.  The ACLU model bill and New Hampshire police body camera law offer examples of a thorough policy.

Our biggest concern is subsection 3(c).  Requiring written permission from every person in a video who is identifiable (as well as the property owner) to access to the video will permit police to block access to most videos, because people will simply not respond to the police permission letters.  Requiring people to state an objection is still not good, but is better than a law that relies on people responding to government mailings that do not personally affect them – that is simply not going to happen.  The provision, in practice, will allow police to deny access to virtually all videos (not to mention it opens to door to people being paid money in return for not agreeing to provide permission, etc.).

One of the main reasons for making police videos in the first place is to provide an additional layer of public accountability.  It is critical to not prevent the public from being able to access these by creating additional layers of government bureaucracy.

We should be more inclined to pursue a privacy solution for videos (where it is in  the public interest to release them) to add some language like: Whenever doing so is necessary to protect personal privacy, the right to a fair trial, the identity of a confidential source or crime victim, or the life or physical safety of any person appearing in video footage, redaction technology may be used to obscure the face and other personally identifying characteristics of that person, including the tone of the person’s voice, provided the redaction does not interfere with a viewer’s ability to fully, completely, and accurately comprehend the events captured on the video footage.

Today, Western District Judge Peterson found that the use of solitary confinement, pepper spray and restraints at two juvenile facilities in Wisconsin violate youths’ constitutional rights under the Fourteenth Amendment.  The court ordered the parties to propose the terms of a preliminary injunction to end the inhumane conditions and practices within two weeks of today’s order.  The suit was originally filed in January on behalf of youth confined in the Lincoln Hills School for Boys and the Copper Lake School for Girls. Yesterday and today, the ACLU of Wisconsin and Juvenile Law Center, with pro-bono assistance from Quarles & Brady argued in the Western District Court that children incarcerated at Lincoln Hills and Copper Lake needed immediate relief while the case was being litigated.

This a major step forward for youth in Wisconsin. The Court recognized that Wisconsin is an extreme outlier in its reliance on  pepper spray, restraints and punitive solitary confinement and that these practices are unnecessary and counterproductive.  We need to eliminate these cruel practices immediately,” said ACLU of Wisconsin Legal Director Larry Dupuis.

Lincoln Hills and Copper Lake incarcerate over 150 youth on any given day, with an average of 20% of these youth confined to solitary confinement in bare solitary confinement cells for 22 or 23 hours a day.  The staff keep many of these children in handcuffs attached to a belt around their waists, and then handcuffed to a table or desk, during the hour or two they are allowed out of their cells. Staff throughout Lincoln Hills and Copper Lake also regularly use pepper spray on the youth, causing pain and burning and impairing their breathing and health. During the hearing, the State acknowledged the severe harm that solitary confinement causes youth, and that they have pepper sprayed youth even while they are shackled or locked in their cells.

The Court’s ruling today will protect youth from harmful, degrading, and unconstitutional practices,” said Jessica Feierman, Associate Director of Juvenile Law Center. “Young people in Wisconsin – and across the country – deserve to be treated with dignity and respect, not locked up and deprived of exercise, recreation, social contact, and educational programming.”

The court stated that young people have a constitutional right to rehabilitation, and it was being thwarted by these practices.  Judge Peterson said that the civil rights groups had “amply shown acute, immediate and lasting harm from use of solitary confinement,” and immediate changes needed to take place.