7 Investigates|Records: During Litscher’s first year, juvenile pepper spraying increased more than 5 times

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(WSAW) – During his first year on the job, Wisconsin Department of Corrections incident reports, obtained by 7 investigates, show under Corrections Secretary Jon Litscher there have been more than five times as many recorded Division of Juvenile Corrections pepper spray incidents inside the state’s only youth prison, the Lincoln Hills-Copper Lake Schools in Irma.

“When you look at months, months will have different escalations,” Litscher said speaking of the pepper spray numbers. “An incapacitating agent to stop aggressive behavior is used such that the behavior does not escalate into an injury.”

In 2015, the year before Litscher returned to the job, those records show there were 45 pepper spray incidents. The following year in 2016, when Listcher had returned to the job in March, recorded incidents increased to 220. In the year since Litscher has been secretary, there have been more five times as many pepper spray incidents logged, for a total of 253 from March 2016-March2017.

Gov. Scott Walker appointed Litscher to the position he previously held from 1999-2003 in February 2016. Litscher’s selection followed the resignation of former corrections secretary Ed Wall’s resignation in the midst of an ongoing FBI investigation surrounding abuse allegations inside the state’s only juvenile corrections facility.

“It seems that a lot of the sort of ‘flight club’ type stuff that you hear about, and the sexual assaults and those types of things, because of the scrutiny had stopped,” American Civil Liberties Unit attorney Larry Dupuis, who is representing four juvenile offenders families suing, said. “Looking back at the records that's about the time they started increasing the use of pepper spray.”

The ACLU of Wisconsin-Juvenile Justice Center lawsuit, filed in January, says Litscher and other youth prison leaders knew practices, including pepper spraying juvenile offenders, were harmful but allowed them anyway. Corrections Department leaders have declined to comment on the lawsuit’s allegation due to the ongoing nature of the litigation.

Pepper Spray Use

Litscher, like many Department of Corrections employees, use the technical term ‘OC’ exclusively when talking about pepper spray. Pepper spray’s active ingredient, a chemical known as a capsaicin, comes from extracting oleoresin capsicum, or OC, from peppers.

During a February legislative hearing, Litscher’s testimony included saying his goal was to minimize pepper spray use as the department moved forward

"Now please understand, I didn't say eliminate. I said minimize. Because there are going to be some instances where you are going to have to get involved with youth," Litscher said in Feb.

Following the hearing, in March, Litscher sat down with 7 Investigates to further explain the process.

"The use of OC is there to stop that type of aggressive behavior. And if that aggressive behavior is there, and it's not a de-escalation, there's not a talking down of the situation - then you have to use that incapacitating agent. And our records are much more accurate now than ever before."

More accurate record keeping is a main reason Litscher points to for the numbers increase. Those required incident reports, the secretary says, are now reviewed on a weekly basis, looking for patterns and reasons.

"I don't know what they kept as records in the past. I want active records of de-escalation or active records of use of separation. Or use of force. Or restrictive housing," Litscher said.

According to Litscher’s February testimony, the most common offense of the 177 juvenile offenders housed inside the Lincoln Hills-Copper Lake Schools cottages include robbery, operating a vehicle without consent, and what are called ‘other offenses.’ Which include homicide, suffocation, physical child abuse and sexual assault.

Litscher said nearly 60 percent of those offenders come from Milwaukee. That includes the four families ACLU lawyers are representing.

“Constantly Pepper Sprayed”

Gloria Norwood’s grandson, who she has legal custody of, is identified in the lawsuit as “R.N.” He arrived at the Lincoln Hills School shortly after his 14th birthday.

The teen's lawyer says his offense, which is sealed because he is a juvenile, was not serious enough for him to originally be sentenced to the Irma youth prison. But when the teen, diagnosed with attention deficit hyperactivity disorder, failed out of a group home, he was sent to the Irma juvenile corrections facility.

Norwood told 7 Investigates instead of the rehabilitation she expected, just weeks after arriving pepper spray became R.N.’s reality.

"If he acted up or didn't want to go into his room he would be pepper sprayed. That's the only way they could deal with that," Norwood said.

That became the consistent story Norwood says R.N. would tell her when she would make the four-hour trip from her Milwaukee home to Lincoln Hills.

“Constantly,” Norwood said. “I would say constantly pepper sprayed.”

Concerned, because she worried about what the pepper spray was doing to her grandson's health, Norwood says she went to his Lincoln Hills' social worker.

"I say pepper spraying a child could effect their eyes? Or something like that? She said I checked his health chart and it would be OK,” Norwood said. “So that's the way they felt about pepper spraying them."

In the lawsuit the allegations say, "R.N. has been pepper-sprayed many times by staff at LHS."

Lawyers also writing, "Officers also repeatedly and excessively use Bear Mace and other pepper sprays against the youth, causing them excruciating pain and impairing their breathing."

"It burns the eyes. It burns the hair. It burns the body,” Norwood said. “I think it's an inhuman way of treating children. I really do.”

The ACLU’s Dupuis says it must be understand minors do not have the same legal protections as adults.

"These are children. And we treat children different in our justice system." Dupuis said. "They're minors. And they're suppose to be rehabilitated- not punished."

Dupuis’ claim: Litscher and other leaders, were deliberately indifferent to the serious harm risks solitary confinement, use of restraints and pepper spray caused. In his view that is a violation of the juvenile’s constitutional rights.

"The 8th Amendment prohibits cruel and unusual punishments,” Dupuis said. “And the Supreme Court has recognized that juveniles are different in terms of the 8th Amendment."

Between April 2016 and December 2016, ACLU lawyers allege RN was kept in solitary confinement, shackled much of the time, while regularly being pepper sprayed.

"He was losing hope. He says they were playing me. That's what he kept saying. They are playing me," Norwood said.

Placed on suicide watch last fall, the suit says R.N. reached an electrical cord through his food tray slot and wrapped it around his neck. Guard’s responding, they say, pulled on the cord, leaving marks around his neck. When Norwood received the call, R.N. had already been transferred to Mendota Mental Health Institute.

“Oh, it made me feel so bad."

R.N. remains housed under department of corrections supervision at the Mendota Mental Health Center, where Norwood says he is doing well.

Last month, lawyers for the families asked a judge to force DOC leaders to stop practices, including pepper spraying, until a final decision in the case is made. A decision has not been made.

Part II, airing Tuesday May 9 on NewsChannel 7 at 10 will focus on what pepper spay is being used, why the pepper spray policy was recently changed, and hear reaction to from the pepper spray company’s CEO and union leaders.

It is important to note for more than a year 7 Investigates has requested a tour of the Lincoln Hills-Copper Lake Schools, as well as to speak with front line staff, including youth counselors. For much of last year that request went unanswered. Recently, DOC leaders said they would agree to give certain media members a tour of the facility. However, a date has not been set. And DOC leaders say recording the tour will not be permitted.

During a NewsChannel 7 Investigation last year, union leaders alleged front line staff was unfairly taking a majority of the blame for system abuses set in motion by Gov. Walker’s Act 10. During a December interview with NewsChannel 7, Walker strongly refuted the allegations.