Short on fixes for prison problems, Wisconsin weighs independent oversight

August 29, 2024

Wisconsin lawmakers have offered few remedies for deteriorating prison conditions spotlighted this year by investigative journalism, litigation surrounding extended lockdowns and criminal charges against nine Waupun prison officials following a string of inmate deaths.

But prisoner rights advocates remain energized by the recent attention. They are calling for the creation of an independent ombudsman to investigate concerns inside prisons and to study solutions.

Experts say such an office, versions of which exist in 19 states and the District of Columbia, could improve safety. Allowing prisoners and their families to air grievances could decrease tension that fuels violence between guards and inmates. And independent monitoring could prevent neglect and abuse — limiting tax dollars paid out in lawsuits, advocates say.

Between 2013 and 2023, Wisconsin paid out at least $17 million in 450 legal settlements to people alleging abuse, neglect or civil rights violations while incarcerated, according to a Wisconsin Watch analysis of settlement data. The cases involved alleged failure to prevent self-harm, deliberate indifference to medical needs and reckless disregard for the safety of prisoners, among other complaints. As a matter of practice, the state typically admitted no fault in its settlement agreements.

The Wisconsin Watch analysis does not include more than $25 million in settlements and legal fees related to allegations of abuse at Wisconsin’s only youth prison at Lincoln Hills-Copper Lake, including excessive pepper spray use, strip searches and restraints. A counselor was killed this summer in a fight at the prison.

Prisoners and advocates say they have nowhere to turn outside of courts for an impartial review of complaints.

While concerned family members can write to the Department of Corrections, their letters often get ignored or routed to prison staff who may retaliate — for instance by writing up the prisoner in question or reducing privileges like family visitation, Rebecca Aubart said. She’s the executive director of Ladies of SCI, a statewide advocacy group that initially focused on prisoners and loved ones at the medium-security Stanley Correctional Institution.

“What’s going to happen is that it’s going to eventually end up in front of the warden, and nothing will be done about it,” Aubart told Wisconsin Watch.

Creating an ombudsman office, she said, “would give family members a place to go, and it would be kept confidential. We wouldn’t be experiencing the retaliation that we do now.”

Aubart and other advocates brought the idea to the Republican-controlled Assembly’s Committee on Corrections during a July hearing. Lawmakers signaled openness to the idea.

Rep. Angie Sapik, R-Lake Nebagamon, said she had previously considered writing a bill. Rep. Darrin Madison of Milwaukee said he and fellow Democrats have worked on their own proposal.

Aubart asked lawmakers to work together.

“One side cannot fix it,” she said.

Department of Corrections spokesperson Beth Hardtke said the agency is reviewing the idea, but cautioned a new office would require funding and staff resources.

“We would also note that DOC does have a complaint system, including an appeals process, for individuals in our care,” Hardtke added. “We also regularly offer guidance to the public, route complaints or concerns to the appropriate place, and resolve issues.”

That complaint system is Wisconsin’s primary avenue for resolving prison grievances, with concerns submitted to and reviewed by an institution complaint examiner. Prisoner advocates call it unresponsive. Unlike an independent ombudsman, it exists completely within the Department of Corrections. Complaints first flow to staff at the prison where they originate, creating a perverse incentive to dismiss them out of hand, critics say.

Rep. Ryan Clancy, D-Milwaukee and a corrections committee member, calls it “the worst possible system.”

“We need an independent fact-finder to investigate because a system where you can be punished for speaking out is not a good one,” Clancy said.

Independent prison oversight in other states

Lawmakers outside of Wisconsin are increasingly turning to independent prison monitors. Virginia and Maryland this year passed bipartisan bills to create ombudsman offices, as did Congress — strengthening oversight of federal prisons.

“States and legislators around the country are starting to understand how essential this is. It’s basically what democracy and good governance is all about,” said Michele Deitch, director of the Prison and Jail Innovation Lab at the University of Texas at Austin, who has extensively researched independent prison monitoring. “And that’s why these bills are passing with bipartisan support, unanimous support.”

New Jersey and Washington state represent strong models of oversight, Deitch said, giving investigators broad access to inspect facilities. Internal inspection offices can serve a purpose, she added, but they rarely share findings publicly, limiting transparency and accountability.

Some corrections staffers who initially bristle at outside oversight end up benefiting through improved relations with prisoners and working conditions, Deitch said.

“Oversight benefits everybody involved in the system, from incarcerated people and their families, to staff and administrators,” Deitch said.

Employees at understaffed Waupun Correctional Institution might welcome such results. The prison experienced 176 assaults on staff from June 2023 to June 2024 — more than a third of assaults systemwide, Department of Corrections data show.

One Waupun prison staff member said the many assaults and tensions from ongoing litigation at times make correctional officers reluctant to impose consequences for threatening or assaultive behavior for fear of triggering additional lawsuits or charges.

“You can’t run a prison in fear, and right now, we’re on our heels,” said the staff member, who requested anonymity because he was not authorized to speak publicly.

How Minnesota does it

Wisconsin can look to its neighbor for one oversight model.

In the early 1970s, in the wake of one of the country’s bloodiest prison riots in Attica, New York, problems brewed at Minnesota’s Stillwater prison, which saw uprisings, escape attempts, murders and a violent attack on the warden. In 1970, armed inmates took three officers hostage and tried to walk out wearing their uniforms. The prisoners gave up after listing their grievances to a reporter.

Two years later Minnesota created its ombuds office to address grievances before hostilities spiraled into violence.

The office was defunded in 2002 and closed the following year, but it reopened in 2019 after the deaths of two correctional officers, said Margaret Zadra, the state’s ombudsperson for corrections.

“A lot of people at the time were talking about the office as a pressure release valve,” Zadra said. “But we tend to talk about our office more like a flashlight. We shine a light on issues, and we can go behind the walls and see things that most people don’t have access to and can’t see.”

Although Minnesota and Wisconsin have roughly the same demographics and population, their corrections systems look dramatically different. Wisconsin locks up more than 22,000 people in adult prisons, more than twice as many as Minnesota.

Minnesota, as a result, spends proportionately less on corrections than Wisconsin: $111 per state resident in 2020, compared to Wisconsin’s $220, according to a Wisconsin Policy Forum analysis.

Minnesota’s Office of the Ombuds for Corrections employs five staff members and plans to add three more. It oversees 11 prisons and 150 jails statewide and has a budget of $1.3 million. The office is independent from the state’s corrections department and reports to the governor.

Minnesota’s ombuds fields complaints from prisoners, staff and community members and holds office hours at correctional facilities. It lacks enforcement powers but presents recommendations to the Department of Corrections and Legislature. The office helps those incarcerated resolve individual problems and advocates for systemic change after diagnosing larger problems, Zadra said.

Since 2020 the office has produced recommendations for improving use of force policies, unsafe practices when transporting prisoners and crumbling conditions within state prisons. Several recommendations have prompted legislative action, including creating a body-worn camera pilot project for correctional officers.

Costly complaints

Wisconsin prisoners who believe their rights have been violated can sue the Department of Corrections, but only after exhausting every step of the internal grievance process.

Missing a step or deadline can trigger a case’s dismissal.

That happened in May when a federal judge dismissed eight of 10 plaintiffs in a lawsuit alleging cruel and unusual punishment at Waupun’s prison. U.S. Magistrate Judge William Duffin ruled the eight incarcerated men failed to exhaust administrative remedies before suing.

Lonnie Story, who represents the inmates, told Wisconsin Watch he plans to refile the case.

Reliance on internal complaint systems stems from the Prisoner Litigation Reform Act of 1996, which Congress enacted to stem the tide of “frivolous” lawsuits. Legal scholars and prisoner rights advocates say the law created barriers to resolving grievances — aside from prompting more case dismissals.

For instance it capped attorney fees plaintiffs’ attorneys can win, making it harder for prisoners to find representation.

Many prisoners represent themselves in lawsuits, and some win — evidenced by the 450 settlements over prison allegations from 2013 to 2023.

Of the $17 million paid out in those lawsuits, $5 million went to the family of James Black. The family’s 2014 lawsuit alleged correctional officers ignored Black’s requests to be moved out of a cell he shared with an inmate known for sexually predatory and violent behavior. The prisoner later violently raped Black and stomped on his head, leaving him with severe and permanent brain damage that required 24-hour supervision, according to the suit.

Another $175,000 went to a Milwaukee Secure Detention Facility prisoner who was harassed and sexually assaulted by former correctional officer Paul Vick Jr., who later received a prison sentence for sexually assaulting inmates and misconduct in office.

Improving prison conditions at the complaint stage might save the state money by reducing lawsuits, Deitch said, adding that critics counter that added scrutiny would expose more problems that festered in secret, perhaps at least initially increasing lawsuits.

“It could cut either way,” said Deitch. “But the reality is, if you clean up what’s going on inside prisons, of course, you’re going to reduce the number of lawsuits.”

Minnesota’s ombuds office operates parallel to the internal correction department grievance system. Investigators encourage prisoners to follow the internal complaint process ahead of an ombuds investigation.

Little progress

The push for increased scrutiny over Wisconsin prisons follows months of lawmaker inaction.

In November, months after Wisconsin Watch and the New York Times exposed worsening conditions and extended lockdowns at Waupun’s prison, Democratic lawmakers called a press conference to unveil 17 bills that they said would improve transparency, oversight and conditions of confinement. The bills did not advance in the Republican-controlled Legislature.

Speaking at the July hearing, Rep. Michael Schraa, R-Oshkosh, the outgoing Assembly Committee on Corrections chair, said he may have supported some bills had Democrats sought his input before the press conference.

“You guys went in front of the TV cameras. You took your five minutes of fame. You never came to any member on this committee, on the Republican side, and worked with any of us,” Schraa said. “That’s not the way that things work here. The majority party brings these bills forward, and if they’re bipartisan bills, they get hearings.”

Clancy, the Milwaukee Democrat, disputed that account. Email correspondence he shared with Wisconsin Watch showed he contacted Schraa’s office about the bills weeks before the press conference. Schraa’s office canceled the meeting before it took place, Clancy said. Through an aide, Schraa declined to be interviewed for this story. Schraa lost his reelection bid in a Republican primary earlier this month.

Entrenched partisanship has fueled gamesmanship that prevents lawmakers from solving problems, Clancy said.

“It’s just a really toxic environment of them not wanting to give us, as Dems, a win.”

Legislative stalemates left chronic prison staffing shortages unaddressed for years. While DOC officials warned of a looming staffing crisis nearly a decade ago, the Legislature took no meaningful action to hire and retain correctional staff until 2023 — after the prisons began locking down due to a lack of staff to fully operate.

DOC has since filled vacancies in some prisons. The systemwide vacancy rate for correctional staff and officers as of Aug. 28 sits at 12%, down from its 35% peak in August 2023. The vacancy rate at Waupun still remained above 41%, higher than any other prison.

Madison, the Milwaukee Democrat, recalled seeing a stack of letters from incarcerated people during his first day in office. The letters detailed problems Madison saw evidence of while touring prisons as a member of the Assembly corrections committee.

“If an office of ombudsman existed, those complaints would fall on them instead of an internal system, which is not a good model of accountability anyway,” Madison said. “We’d likely see more results in changing practices within facilities if it was independent of administration.”

Douglas Duncan contributed research for this story.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.