Bill Text: NY A08461 | 2021-2022 | General Assembly | Amended

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Bill Title: Increases the number of members on the state commission of correction; relates to inspection and procedures applicable to unsafe or unsanitary correctional facilities; requires the biannual publication of reports containing the results of inspections.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Introduced - Dead) 2022-01-18 - print number 8461a [A08461 Detail]

Download: New_York-2021-A08461-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         8461--A

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    November 17, 2021
                                       ___________

        Introduced  by  M.  of  A.  GALLAGHER  --  read once and referred to the
          Committee on Correction -- recommitted to the Committee on  Correction
          in  accordance  with  Assembly Rule 3, sec. 2 -- committee discharged,
          bill amended, ordered reprinted as amended  and  recommitted  to  said
          committee

        AN ACT to amend the correction law, in relation to the membership of the
          state commission of correction and to inspection and procedures appli-
          cable to unsafe or unsanitary correctional facilities

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 40 of the correction law is amended by adding a new
     2  subdivision 7 to read as follows:
     3    7. "Serious injury" means the same as such term is defined in  section
     4  fifty-one hundred two of the insurance law.
     5    §  2. Section 41 of the correction law, as added by chapter 865 of the
     6  laws of 1975, is amended to read as follows:
     7    § 41. State commission of correction; organization. 1. (a) There shall
     8  be within the executive department a state commission of correction.  It
     9  shall  consist  of  [three]  nine  persons [to be], two of whom shall be
    10  appointed by the governor[, by and with the advice and  consent  of  the
    11  senate],  two  of  whom  shall  be  appointed  by a majority vote of the
    12  membership of the assembly, two of whom shall be appointed by a majority
    13  vote of the membership of the senate, two of whom shall be appointed  by
    14  the  attorney general, and one of whom shall be appointed by the correc-
    15  tional association. All appointments shall be by and with the advice and
    16  consent of the senate to ensure the requirements of this subdivision are
    17  met.
    18    (b) At least one member of the commission shall be a  formerly  incar-
    19  cerated  person,  and  a  preference  in appointment shall be granted to
    20  nominees who have been personally affected by contact with the  criminal
    21  legal system. At least one member of the commission shall have a profes-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13287-11-2
        A. 8461--A                          2

     1  sional  background  in  public health. No more than three members of the
     2  commission shall have a background in law enforcement,  criminal  prose-
     3  cution,  or  employment  within a corrections agency, and the members of
     4  the  commission  with  such  backgrounds shall never be greater than the
     5  number of members of the commission with backgrounds in indigent  crimi-
     6  nal  defense  services,  prisoner's  rights  litigation, or public legal
     7  services. The remaining members of the commission shall  have  expertise
     8  in  any  other  field  deemed  useful for the promotion of an efficient,
     9  humane, and lawful correctional system. The [governor]  members  of  the
    10  commission  shall  designate one of the appointed members as chairman to
    11  serve [as such] at [the] their pleasure [of the governor].  The  members
    12  shall  devote full time to their duties and shall hold no other salaried
    13  public position.
    14    2. The members shall hold office for terms  of  five  years;  provided
    15  that of the three members first appointed, one shall serve for a term of
    16  two years, one shall serve for a term of three years and one shall serve
    17  for  a  term  of  five  years  from  January first next succeeding their
    18  appointment. No member shall serve for more than ten years.  Any  member
    19  of  the  commission  may  be  removed by the governor for cause after an
    20  opportunity to be heard in his or her defense.
    21    3. Any member chosen to fill a vacancy created other than  by  expira-
    22  tion  of  term  shall  be appointed for the unexpired term of the member
    23  whom he or she is to succeed.  Vacancies caused by expiration of term or
    24  otherwise shall be filled in the same manner as  original  appointments;
    25  provided,  however,  that if a position on the commission remains vacant
    26  for any period longer than one hundred eighty days, the members  of  the
    27  commission may appoint an individual to fill such vacancy whose appoint-
    28  ment  satisfies  the requirements of paragraph (b) of subdivision one of
    29  this section.
    30    4. The appropriations available to pay for the expenses of the commis-
    31  sion during each fiscal year shall not be less than two percentum of the
    32  appropriations available to pay  for  the  expenses  of  the  department
    33  during such fiscal year.
    34    §  3. Subdivision 3 of section 45 of the correction law, as amended by
    35  chapter 322 of the laws of 2021, is amended to read as follows:
    36    3.  Except  in  circumstances  involving  health,  safety  or  alleged
    37  violations  of  established  standards  of  the  commission,  visit, and
    38  inspect every correctional [facilities] facility  in  the  state  on  an
    39  annual  basis  consistent  with a schedule determined by the chairman of
    40  the commission[, taking into consideration available resources, workload
    41  and staffing], and appraise the management of such correctional  facili-
    42  ties with specific attention to matters such as safety, security, health
    43  of   incarcerated   individuals,   sanitary  conditions,  rehabilitative
    44  programs, disturbance and fire prevention and control preparedness,  and
    45  adherence  to  laws and regulations governing the rights of incarcerated
    46  individuals.  The  commission  shall  not  disclose  its  schedule   for
    47  inspections  or provide advance notice to any correctional facility of a
    48  planned inspection unless such notice  is  required  to  carry  out  the
    49  duties of the commission.
    50    §  4. Subdivision 4 of section 46 of the correction law, as amended by
    51  chapter 322 of the laws of 2021, is amended and two new  subdivisions  5
    52  and 6 are added to read as follows:
    53    4. In any case where any rule or regulation promulgated by the commis-
    54  sion  pursuant  to subdivision six of section forty-five of this article
    55  or the laws relating to the construction, management and affairs of  any
    56  correctional  facility  or  the  care,  treatment  and discipline of its
        A. 8461--A                          3

     1  incarcerated individuals, are being or are about  to  be  violated,  the
     2  commission  shall  immediately notify the person in charge or control of
     3  the facility of such violation, recommend remedial  action,  and  direct
     4  such  person to comply with the rule, regulation or law, as the case may
     5  be.   The commission shall also immediately  notify  the  governor,  the
     6  chair  and members of the assembly standing committee on correction, and
     7  the chair and members of the senate standing committee on crime victims,
     8  crime, and correction, of the alleged or documented  violation  and  the
     9  remedial action that the commission recommends. Upon the failure of such
    10  person  to  comply with the rule, regulation or law the commission [may]
    11  shall promptly apply to the supreme court for an order directed to  such
    12  person requiring compliance with such rule, regulation or law; provided,
    13  however,  that if the commission decides to close a facility pursuant to
    14  section forty-five of this article, the commission shall not be required
    15  to apply for an order. Upon such application the court [may] shall issue
    16  such order as may be just and a failure to comply with the order of  the
    17  court shall be a contempt of court and punishable as such.
    18    5.  (a)  In any case where there is a reasonably foreseeable risk that
    19  conditions at a correctional facility might violate  the  constitutional
    20  rights  of  people incarcerated there, cause imminent harm to any incar-
    21  cerated person, or cause the imminent death of any incarcerated  person,
    22  the  commission  shall  be required to order the closure of such correc-
    23  tional facility pursuant to subdivision eight of section  forty-five  of
    24  this article. Such correctional facility shall remain closed permanently
    25  or  until  the commission has determined that such correctional facility
    26  can resume operations in compliance with all regulations promulgated  by
    27  the commission and without posing any reasonably foreseeable harm to any
    28  person  incarcerated there. The commission shall not need to apply for a
    29  court order pursuant to subdivision four of this section before deciding
    30  to close a correctional facility. Failure to  take  action  pursuant  to
    31  this  subdivision  or  subdivision four of this section shall constitute
    32  neglect of a ministerial matter.  For the purposes of this  subdivision,
    33  "ministerial matter" shall have the same meaning as such term is defined
    34  in  paragraph  (d)  of  subdivision  one of section seventy-three of the
    35  public officers law.
    36    (b) Upon a recommendation made by the governor or the attorney  gener-
    37  al,  or  upon a resolution passed in the assembly or senate, or upon the
    38  request of a considerable number of people incarcerated in  any  correc-
    39  tional  facility  or  particular  wing,  annex, or housing unit thereof,
    40  asking the commission to inspect any correctional facility and recommend
    41  remedial actions or close a correctional  facility  pursuant  to  powers
    42  granted  in  section  forty-five  of  this article, the commission shall
    43  discuss such matter at the next stated meeting to occur after ten  busi-
    44  ness  days,  provided that such meeting occurs within forty-five days of
    45  such request.  The commission shall inspect the correctional facility or
    46  facilities in question, collect any relevant documents, and conduct  any
    47  interviews  of incarcerated people, staff, medical providers, and super-
    48  visors at such correctional facility prior to such meeting and make  the
    49  result  of  its  inspection  and  analysis public online before its next
    50  stated meeting. Such analysis shall, at a minimum, include a description
    51  of the factors contained in subdivision three of section  forty-five  of
    52  this  article.  At such meeting, the commission shall determine whether,
    53  based on its inspection and analysis, the  correctional  facility  lacks
    54  compliance with any law or regulation promulgated by the commission, and
    55  whether  such  non-compliance poses an imminent harm to any incarcerated
    56  person in the custody of that correctional facility.    At  such  stated
        A. 8461--A                          4

     1  meeting  the commission shall state on the record the reasoning underly-
     2  ing its determination to take  no  action,  recommend  remedial  action,
     3  apply  to  the  supreme  court  for  an order, or order the closure of a
     4  facility.
     5    6.  (a)  Twice  per  year, at intervals separated by approximately six
     6  months, the commission shall publish a report containing the results  of
     7  its  annual  inspections of correctional facilities in a prominent place
     8  on its website, and shall deliver a copy of such report to the governor,
     9  the temporary president of the senate, the speaker of the assembly,  and
    10  the  attorney general.   Such reports shall contain, without limitation,
    11  detailed information about any violations of regulations  or  applicable
    12  laws  at  each  correctional  facility  inspected, notable excerpts from
    13  interviews with  incarcerated  people,  staff,  medical  providers,  and
    14  supervisors at each facility, descriptions of deaths or serious injuries
    15  that  have  occurred  at  any  correctional facility that was inspected,
    16  copies of recommendations or directives that have  been  issued  by  the
    17  commission  to  any  correctional  facility  during  the  period of time
    18  covered by  the  report,  and  copies  of  any  correctional  facility's
    19  response to such recommendations or directives.
    20    (b) As soon as the commission completes an investigation of a death or
    21  serious  injury  suffered  by an incarcerated person in the custody of a
    22  correctional facility, the commission shall publish  on  its  website  a
    23  report  containing  the  result of such investigation, including without
    24  limitation the complete result of the commission's investigation of such
    25  incident, true and correct copies of records  that  the  commission  has
    26  received from such facility in connection with its investigation of such
    27  incident,  a  determination as to whether conditions in the correctional
    28  facility or the quality of medical care or supervision that  the  incar-
    29  cerated  person  received  were  contributing  factors or related to the
    30  cause of death, and a list of regulations or applicable  laws  that  may
    31  have  been violated in proximate relation to such incident.  The commis-
    32  sion shall also cause such report to be delivered to the next-of-kin  or
    33  authorized  legal  representative  of  such  incarcerated  person.  Such
    34  reports shall not be  redacted except as otherwise required  to  protect
    35  confidential  medical records and behavioral  health  records in accord-
    36  ance with state and federal laws, rules, and regulations.
    37    (c) The commission may publish information contained in  its  reports,
    38  data on deaths or serious injuries of incarcerated people at correction-
    39  al  facilities,  and information on uncured violations of laws and regu-
    40  lations at any correctional facility in a searchable database format  on
    41  its website if the commission determines that such a format will facili-
    42  tate greater public access to such information.
    43    (d)   If,   in  the  course  of  the  commission's  investigations  or
    44  inspections, the commission finds evidence of a pattern of  malfeasance,
    45  nonfeasance,  abuse, or negligence on the part of staff or management at
    46  any correctional facility, the commission shall immediately report  such
    47  evidence to the attorney general and the district attorney for the coun-
    48  ty  in  which  such  correctional facility is located, and such evidence
    49  shall be published within the reports issued by the commission  pursuant
    50  to paragraph (a) of this subdivision.
    51    §  5. Section 43 of the correction law, as added by chapter 865 of the
    52  laws of 1975, subdivisions 1 and 2 as amended by chapter 379 of the laws
    53  of 1988, is amended to read as follows:
    54    § 43. Correction medical review board; organization. 1. There shall be
    55  within the commission  a  correction  medical  review  board.  It  shall
    56  consist of six persons to be appointed by the [governor] commissioner of
        A. 8461--A                          5

     1  the  department  of  health  by  and  with the advice and consent of the
     2  senate. In addition, the governor shall designate one of  the  full-time
     3  members  other  than  the chairman of the commission and the chairman of
     4  the council as chairman of the board to serve as such at the pleasure of
     5  the  governor.    Of  the  appointed members of the board one shall be a
     6  physician duly licensed to practice in this state; one shall be a physi-
     7  cian duly licensed to practice in  this  state  and  a  board  certified
     8  forensic pathologist; one shall be a physician duly licensed to practice
     9  in  this state and shall be a board certified forensic psychiatrist; one
    10  shall be an attorney admitted to practice in this state;  two  shall  be
    11  members appointed at large.
    12    2.  The  six appointed members of the board shall hold office for five
    13  years; provided that of the two members first appointed, after  December
    14  thirty-first,  nineteen  hundred  eighty-seven  who are not appointed to
    15  succeed any other member of the board, one shall be appointed for a term
    16  of four years and one shall be appointed for a term of five  years  from
    17  January  first  next succeeding their appointment.  Any appointed member
    18  of the board may be removed by the governor for cause after an  opportu-
    19  nity to be heard in his or her defense.
    20    3.  Any  member chosen to fill a vacancy created other than by expira-
    21  tion of term shall be appointed for the unexpired  term  of  the  member
    22  whom he or she is to succeed.  Vacancies caused by expiration of term or
    23  otherwise  shall  be filled in the same manner as original appointments;
    24  provided, however, that if a position on the board  remains  vacant  for
    25  any period longer than one hundred eighty days, the members of the board
    26  may  appoint an individual to fill such vacancy whose appointment satis-
    27  fies the requirements of subdivision one of this section.
    28    4. The members of the board shall [receive no compensation  for  their
    29  services  but  each  member  shall be entitled to receive his actual and
    30  necessary expenses incurred in the performance  of  his  duties]  devote
    31  full-time  to their duties and shall hold no other salaried public posi-
    32  tion.
    33    § 6. Section 47 of the correction law, as amended by  chapter  322  of
    34  the laws of 2021, is amended to read as follows:
    35    §  47.  Functions,  powers and duties of the board. 1. The board shall
    36  have the following functions, powers and duties:
    37    (a) Investigate and review the cause and circumstances surrounding the
    38  death or serious injury of any incarcerated individual of a correctional
    39  facility.
    40    (b) Visit and inspect any correctional facility wherein an incarcerat-
    41  ed individual has died or suffered a serious injury.
    42    (c) Cause the body of  the  deceased  to  undergo  such  examinations,
    43  including  an  autopsy, as in the opinion of the board, are necessary to
    44  determine the cause of death, irrespective of whether any such  examina-
    45  tion or autopsy shall have previously been performed.
    46    (d)  Upon  review  of the cause of death or serious injury and circum-
    47  stances surrounding the death or  serious  injury  of  any  incarcerated
    48  individual,  the board shall submit its report thereon to the commission
    49  and  to  the  governor,  the  chairman  of  the  assembly  committee  on
    50  correction  and  the  chairman of the senate committee on crime victims,
    51  crime and correction and, where  appropriate,  make  recommendations  to
    52  prevent the recurrence of such deaths or serious injuries to the commis-
    53  sion and the administrator of the appropriate correctional facility. The
    54  report  provided to the governor, the chairman of the assembly committee
    55  on correction and the chairman of the senate committee on crime victims,
    56  crime and correction shall not be redacted except as otherwise  required
        A. 8461--A                          6

     1  to protect confidential medical records and behavioral health records in
     2  accordance with state and federal laws, rules, and regulations.
     3    (e)  (i)  Investigate and report to the commission on the condition of
     4  systems for the delivery of medical care to incarcerated individuals  of
     5  correctional  facilities and where appropriate recommend such changes as
     6  it shall deem necessary and proper to improve the quality and availabil-
     7  ity of such medical care.
     8    (ii) The board shall be responsive to inquiries from the next  of  kin
     9  and  other  person  designated  as  a representative of any incarcerated
    10  individual whose death or serious injury takes place during custody in a
    11  state correctional facility regarding the circumstances surrounding  the
    12  death  or serious injury of such incarcerated individual. Contact infor-
    13  mation for the next  of  kin  and  designated  representative  shall  be
    14  provided  by  the  department  to  the  board from the emergency contact
    15  information previously provided by the incarcerated  individual  to  the
    16  department.
    17    2.  Every  administrator  of a correctional facility shall immediately
    18  report to the board the death or serious injury of an incarcerated indi-
    19  vidual of any such facility in such manner and form as the  board  shall
    20  prescribe, together with an autopsy report, or in cases of serious inju-
    21  ry a physician's report.
    22    § 7. This act shall take effect immediately.