Wisconsin has made a “culture shift” in its use of solitary confinement in prisons, eliminating it as punishment for minor rule infractions and cutting the time inmates spend in isolation for more serious offenses, Department of Corrections officials say.
In most cases, the state prison system will no longer discipline inmates for self-harm or suicide attempts by sentencing them to time in solitary confinement. And mitigating factors such as mental illness will be considered in meting out punishment, two top DOC officials said in an interview granted as part of a legal settlement with the Wisconsin Center for Investigative Journalism.
The changes in so-called restrictive status housing at DOC come as powerful voices ranging from Democratic President Barack Obama to conservative billionaire Charles Koch are calling for less incarceration and more rehabilitation.
Republican Wisconsin Gov. Scott Walker has, for most of his political career, gone in the opposite direction. As a lawmaker, he spearheaded passage of the “truth-in-sentencing” law enacted in 1999 that vastly increased the length of sentences for Wisconsin prisoners.
In 2011, his first year as governor, Walker signed a bill that he had championed ending the early-release program launched under Democratic Gov. Jim Doyle. Walker has refused all pardon requests. Since he took office, releases granted by the Walker-appointed Parole Commission have nearly ground to a halt, a 2014 Wisconsin State Journal investigation found.
But on this topic — reducing the use of solitary confinement — Walker told the Center in December that he was supportive of Corrections Secretary Edward Wall’s push to rethink its use in Wisconsin prisons. His spokeswoman declined this month to say whether Walker approves of the new policies.
Major policy shift
Solitary confinement in Wisconsin involves placing inmates in small concrete cells with little natural light and minimal human contact for nearly 24 hours a day. Food is passed through a slot in a solid door.
Prisoners are generally allowed few possessions in solitary confinement. In some instances, inmates can be left for hours or days with no bedding, except for a mattress, or clothes, except perhaps a paper gown. Any movement outside of the cell is done in shackles. Inmates also can be strip searched.
Dr. Kevin Kallas, DOC’s director of mental health, told the Center the agency intends to “change our attitudes and our culture about restrictive housing, how we use it and who we use it for.”
“We want to make the experience to be as constructive, instructive, rehabilitative as possible, and obviously that’s a work in progress,” Kallas said. “We have a ways to go with that. But that’s our clear direction.”
In addition, correctional officers are now being rotated through restrictive housing units after 14 weeks to reduce staff burnout, said Cathy Jess, administrator of the Division of Adult Institutions.
Advocates said the move could lead to fewer allegations of abuse such as those documented last year by a Center investigation of Waupun Correctional Institution’s solitary confinement unit.
That investigation found 40 alleged incidents of serious physical or psychological abuse of inmates by staff in the solitary confinement unit, formerly known as the segregation unit, two-thirds of them tied to a single guard, Joseph Beahm. Beahm remains at the prison and continues to work in the unit; officials have said prisoners complaining of abuse were lying.
The Rev. Jerry Hancock of Wisdom, the faith-based group that has been pushing to end solitary confinement in Wisconsin prisons, said the organization’s three-year campaign — and years of legal challenges by state prisoners — appear to be paying off.
Kallas said under the old policy, a prisoner could be isolated for up to 360 days for many offenses. They included such infractions as assault, lying about employees and possession of tobacco. The new policy states that restrictive housing is to be used only for offenses that “create a serious threat to life, property, staff, or other inmates, or to the security or orderly operation of the institution.”
The new rules set a maximum initial term of 90 days for the most serious offenses, including aggravated assault on staff or hostage-taking. The sentence can be adjusted downward for mitigating factors, such as mental illness, or upward for aggravating factors, such as whether an inmate is a serial violator. All sentences of 120 days or more must be reviewed by the DOC secretary.
“As a department … we have continued to make changes and we will continue to make changes,” Jess said. “It is somewhat of, I would say, a culture shift for staff. I’ve been in the department for 29 years. Things change, the pendulum swings with corrections, and depending on the public’s opinion and how laws get passed and different things.”
The Rev. Kate Edwards, an ordained Buddhist chaplain who volunteers in the state prisons and leads Wisdom’s anti-solitary effort, said the changes, if implemented as written, would be “huge.” But she is concerned about the lack of a specified maximum period of confinement for rule violations involving “aggravating” circumstances.
Under the new policy, correctional officers also are now encouraged to work with inmates to devise mutually agreeable disciplinary sanctions for minor offenses, Jess said.
And in a major policy shift, Kallas said inmates will no longer be punished just for harming themselves, unless they are “disruptive or disrespectful or assaultive.”
“So if an inmate is cutting themselves, for example, they should not get a conduct report for disfigurement, for example. Or if they take an overdose, they should not get a conduct report for misuse of medication,” Kallas said. “We want to take the approach of treating for that behavior rather than disciplining for that behavior.”
Kallas told the Center that the DOC had already begun rolling out some of the new policies last year and quickly began to see results. As of June 7, Jess said, the number of Wisconsin prisoners being held in segregated housing had dropped by about 22 percent to about 995 prisoners, down from 1,268 prisoners a year earlier.
Asked if the changes had resulted in more security problems in the prisons, Jess said it has been the opposite.
“We are not hearing there is any more disruption than before these policies were put in place,” Jess said. “We are hearing there are less disciplinary reports.”
More changes may be on the way.
According to documents obtained by the Center under an open records request and settlement, DOC is considering changes to a policy that allows prison officials to keep inmates in solitary confinement indefinitely until their behavior improves. A federal appeals court found in 2014 that conditions endured by a mentally ill Green Bay Correctional Institution inmate while under such a plan may have violated the U.S. Constitution’s ban on cruel and unusual punishment.
“I’m very grateful to see that they have made this much progress, but I feel that we still have a pretty long way to go,” Edwards said. “Also, there is a very deep conviction in me that any amount of torture is not acceptable on any count, and I consider isolated confinement — no matter what they call it — to be torture.”
Edwards noted some infractions that in the past landed prisoners in solitary confinement for months may now, under the new policies, be handled with little to no time in isolation.
DOC tightlipped on changes
Earlier this year, DOC officials failed to release records related to the policy changes under discussion, prompting the Center to file a lawsuit against the agency in January. Under a settlement reached in June, the department turned over the records, made Jess and Kallas available to explain the changes and paid the $4,500 legal bill for the Center’s attorney, Christa Westerberg of McGillivray, Westerberg & Bender in Madison.
The new policies, which officially took effect June 1, seek to more closely match the nature and severity of an offender’s conduct with the punishment, Kallas said. For example, minor prisoner misbehavior may be handled by loss of privileges, confinement to a regular cell or loss of recreation rather than solitary confinement.
“We have found just in the last year or so since we’ve started to implement some of these changes that our overall numbers in restrictive housing have gone down and that we’re using more of these alternative dispositions, rather than restrictive housing,” Kallas said.
“That, I think, is a really important piece of this. Because the issues and the problems that we run into with restrictive housing all become easier to manage and easier to solve if we have fewer people in restrictive housing.”
But Hancock, a former prosecutor who heads the Prison Ministry Project at Madison’s First Congregational United Church of Christ, questioned the DOC’s claim that the number of prisoners in restrictive housing has shrunk. He said corrections officials have repeatedly told Wisdom they do not keep such statistics.
“I don’t know where they’re getting their numbers,” he said.
In a survey released in 2013, the Association of State Correctional Administrators reported that between Dec. 1, 2011 and Dec. 1, 2012, there were 4,327 male prisoners in Wisconsin — or roughly 20 percent of the total inmate population — placed in solitary confinement at some point that year. The survey found 14 inmates had spent more than 10 years in isolation.
Jess said DOC has begun tracking how many prisoners are in restrictive housing at any one time but still does not keep statistics on the length of time inmates spend there.
Lawsuits prompt improvements
Wisconsin is among at least 10 states that have adopted changes related to solitary confinement in recent years as controversy and the number of lawsuits over the practice have grown.
President Obama in July announced he had ordered the Department of Justice to study the overuse of solitary confinement in U.S. prisons.
Some prisoners and their advocates say any prolonged use of solitary confinement amounts to cruel and unusual punishment, which is prohibited under the Eighth Amendment to the U.S. Constitution. In June, U.S. Supreme Court Justice Anthony Kennedy essentially invited plaintiffs to bring a case so the high court can decide the question once and for all.
Over the past 12 years, the state Department of Corrections has eased conditions for prisoners in solitary confinement, some in response to lawsuits, according to a 2014 DOC report released to the Center as part of its settlement.
Some changes in the early and mid-2000s were prompted by an American Civil Liberties Union lawsuit alleging inhumane conditions at the so-called “Supermax” prison — now known as the Wisconsin Secure Program Facility — in Boscobel. The changes included providing clocks, dimming lights and improving treatment of mental and physical health. Other changes included improving library services, allowing recreation items such as puzzles and word searches and “changing radio stations on a regular basis.”
About five years ago, also in response to litigation, DOC replaced frosted glass with clear glass at some prisons, reduced the glow of night lights, allowed inmates “to cover their eyes,” provided warmer clothes and equipment including Hacky Sacks and basketballs for outside recreation and offered some out-of-cell programming to prisoners in restrictive housing, according to the DOC report.
In 2014, the 7th Circuit U.S. Court of Appeals covering Wisconsin found that at times, the conditions under which John Townsend, a mentally ill Green Bay Correctional Institution inmate, was held in the prison’s restrictive housing unit “did not meet the Eighth Amendment’s standard for the minimal civilized measures of life’s necessities.”
According to meeting agendas of the DOC’s Restrictive Housing Workgroup obtained by the Center, Townsend’s case and one brought by inmate Joseph Jiles are forcing the DOC to reconsider behavior action plans in which disruptive inmates can be kept indefinitely in isolation until they behave.
Townsend, who has post-traumatic stress disorder and was suicidal, said he was confined for months in isolation during which “his possessions were limited to a blanket, a smock and a book.” He told the court that for most of his 259 days in solitary, he was not allowed sheets or a pillow. Townsend told the judges that cold air forced him to walk nonstop around his cell to keep warm.
According to his lawsuit, Townsend was allowed just one hour per week outside his cell to read mail and write letters, and he was often denied necessities including toilet paper, soap, toothpaste and a toothbrush. Access to writing and reading materials was “severely restricted” and “for a period of weeks (he does not specify how many), Townsend was entirely naked and provided with no clothing, bedding, linen, mattress or shoes,” the court wrote.
Although the 7th Circuit found the conditions at Green Bay at times violated the Eighth Amendment, Townsend’s lawsuit will not be the test case sought by Justice Kennedy. The DOC agreed to pay Townsend $26,875 as part of a settlement reached in December in which the agency denied any wrongdoing. Milwaukee attorney Dillon Ambrose said his firm handled the case for free.
The Jiles lawsuit, brought in 2014, is still pending.
Jiles charges in his handwritten complaint in the U.S. District Court in Milwaukee that he potentially suffered from “acuted (sic) psychosis” in 2005 and was repeatedly “shuffled” among solitary confinement units at Green Bay, Columbia and Waupun correctional institutions as a “problematic inmate,” engaging in numerous acts of self-harm and “bizarre behaviors.” He alleges prison officials did not treat him for his mental illness and instead employed increasingly severe disciplinary measures to bring him into line.
In the lawsuit, the conditions he describes during a stint at Green Bay are extreme — and similar to those described by Townsend, who was also confined at Green Bay.
“Often, rather than treat plaintiffs (sic) mental illnesses, defendants would confine him, naked, to in (sic) empty cells where, for days and weeks, he would be left with no property, no reading materials, no mail, visits, telephone calls, forced to eat items ranging from oatmeal to jello with his finger and from a wet soiled bag,” according to the lawsuit.
“Consequently, because of the enforced monotony and lack of treatment, plaintiff would further decompensate and commit more self-harm.”
Many inmate lawsuits, especially those filed without a lawyer, are dismissed. In the Jiles case, however, U.S. District Judge Rudolph Randa has ordered that he be represented by an attorney, and Randa has offered to find one to work on Jiles’ case for free.
Tide turning against solitary
The harsh treatment described by Townsend, Jiles and in the Center’s 2014 investigation of the Waupun segregation unit appears to be losing support from the public — and the Department of Corrections. In a 2014 memo, Secretary Wall told DOC staff he was launching an effort to retool how the agency uses isolation.
Wall wrote that simply locking inmates in segregation without providing corrective or rehabilitative programming “may really just be helping to create a worse behavior problem and habitual threat.”
In another sign of change, the Boscobel institution, opened in 1999 and previously dubbed “Supermax,” has been converted from an all-solitary confinement prison for the “worst of the worst” to one having half general population beds. The original purpose of the prison, Jess said, “is not there anymore.”
Edwards said she remains skeptical that DOC will be able to change its approach so quickly or dramatically. But over the past year, Edwards said she has heard from prisoners who felt correctional officers were less likely to seek harsh punishment for infractions.
She recalled an incident in which a prisoner she knows well resorted to holding another inmate down to avoid a fistfight. Both were pepper-sprayed, Edwards said, and “hauled off to seg.” Prison videotape backed up her contact’s side of the story.
“In the past, both men would have gotten an automatic 360 for fighting,” Edwards said. “In this case, he was only given 30 days loss of rec, and his comment to me was, ‘They’ve never shown me that kind of love.’ ”