Complying with a federal judge's order, the state Department of Corrections filed its plan Friday to reduce the use of pepper spray, restraints and solitary confinements for teen inmates.

U.S. District Judge James Peterson gave the DOC two weeks to work with the attorneys representing the current and former inmates at Wisconsin's youth prison suing the department and create the plan.

In his ruling June 23, Peterson said the DOC's practices of routinely using pepper spray, shackles and solitary confinement likely violate the inmates' constitutional rights and that prison administers demonstrated "callous indifference" to the harm inflicted on the inmates because of these practices.

The plan meets Peterson's requirement that inmates not be kept in solitary confinement for more than seven days while increasing time outside of their cells while in isolation and that staff use alternates to pepper spray and evaluate an inmates need for shackles on a case-by-case basis. Some of the details, such as the implementation time frames for the new policies, could not be agreed upon by the DOC and lawyers for the inmates.

The plan states that Lincoln Hills and Copper Lake juvenile prisons will only use solitary confinement as a punishment for violent offenses. The DOC and plaintiffs could not agree on some of the details of how solitary confinement is used for inmates with mental health diagnoses -- the plaintiffs said solitary confinement should not be used under any circumstances for these inmates, according to the document.

The amount of time an inmate can be kept in solitary confinement was also debated in the document -- the DOC says seven days and the plaintiffs say only 3.

The plaintiffs also asked for more time outside of confinement each day. They wrote that inmates should have eight hours of "out time" from his or her solitary cell with six of those hours of structured activities.

The DOC asked for more leeway in "out time" for inmates to allow for staffing fluctuations. The DOC would set a minimum of two hours of "out time" per day and a minimum of 30 hours per week. 

The use of chemical agents would also be limited only to "when a youth is engaging in physical harm to others or to prevent the youth causing bodily harm to another," according to the proposed plan.

Two videos of prison staff using pepper spray on inmates were released publicly Friday.

One video, from a fixed security camera in a hallway shows a guard spraying a girl who was pacing the hallway and would not enter her cell. That guard then sprayed her a second time while she was on the ground with other guards holding her.

The other video, taken on a handheld camera, showed guards spraying an inmate who was in his cell but refused to move his arms into the cell. When the inmate still refused to move his arms, the guard sprayed him a second time.

The lawyers for the inmates request that a medical staff member be present at the time when pepper spray be used whenever possible, but the DOC wrote that this having "medical staff 'present' at the moment that force is used" could be a safety concern. 

The DOC and plaintiffs agreed that "there is a presumption that youth, including youth in RHU, shall not be mechanically restrained," according to the proposed plan. RHU refers to restrictive housing units, commonly known as solitary confinement. 

Inmates may be restrained for up to 45 minutes with the approval of a youth counselor or a living unit supervisor, and any additional time must be approved by the superintendent, security director or their designee. 

The inmates' lawyers also asked for other provisions for the proposed plan that the DOC disagreed with because they are "not narrowly drawn and are not necessary to the terms of the injunction," according to the document. 

These provisions include a positive behavior management program and training, training in de-escalation techniques, strategies for working with youth with mental illness, routine tours and guidance from the facility administrator and a monthly report to the plaintiffs of each instance when solitary confinement, pepper spray or restraints are used.

State Journal reporter Molly Beck contributed to this report.


Shelley K. Mesch is a general assignment reporter for the Wisconsin State Journal. She earned a degree in journalism from DePaul University.