Bill Text: NY S03824 | 2017-2018 | General Assembly | Introduced
Bill Title: Restricts the use of segregated confinement and creates alternative therapeutic and rehabilitative confinement options; limits the length of time a person may be in segregated confinement and excludes certain persons from being placed in segregated confinement.
Spectrum: Partisan Bill (Democrat 14-0)
Status: (Introduced - Dead) 2017-02-28 - RECOMMIT, ENACTING CLAUSE STRICKEN [S03824 Detail]
Download: New_York-2017-S03824-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3824 2017-2018 Regular Sessions IN SENATE January 27, 2017 ___________ Introduced by Sens. PERKINS, BRESLIN, COMRIE, DILAN, HAMILTON, HOYLMAN, KRUEGER, MONTGOMERY, PARKER, PERALTA, PERSAUD, RIVERA, SANDERS, SERRA- NO, SQUADRON -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law, in relation to restricting the use of segregated confinement and creating alternative therapeutic and rehabilitative confinement options The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 137 of the correction law is amended by adding a 2 new subdivision 5-a to read as follows: 3 5-a. The use of segregated confinement, exclusion of certain special 4 populations, and length of time any person can spend in segregated 5 confinement shall be restricted in accordance with paragraphs (g), (h), 6 (i), (j), (k), (l), (m), and (n) of subdivision six of this section or 7 any other applicable law. 8 § 2. Subdivision 23 of section 2 of the correction law, as added by 9 chapter 1 of the laws of 2008, is amended to read as follows: 10 23. "Segregated confinement" means the [disciplinary] confinement, 11 other than for emergency confinement as defined in subdivision thirty- 12 three of this section, or for documented medical reasons or mental 13 health emergencies, of an inmate in a special housing unit or in a sepa- 14 rate keeplock housing unit or any form of keeplock, or cell confinement 15 for more than seventeen hours a day other than in a facility-wide lock- 16 down. Special housing units and separate keeplock units are housing 17 units that consist of cells grouped so as to provide separation from the 18 general population, and may be used to house inmates confined pursuant 19 to the disciplinary procedures described in regulations. 20 § 3. Section 2 of the correction law is amended by adding five new 21 subdivisions 32, 33, 34, 35, and 36 to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08286-01-7S. 3824 2 1 32. "Special populations" means any person: (a) twenty-one years of 2 age or younger; (b) fifty-five years of age or older; (c) with a disa- 3 bility as defined in subdivision twenty-one of section two hundred nine- 4 ty-two of the executive law, including but not limited to, for purposes 5 of mental impairment, persons with a serious mental illness as defined 6 in paragraph (e) of subdivision six of section one hundred thirty-seven 7 of this chapter; (d) who is pregnant, is in the first eight weeks of the 8 post-partum recovery period after giving birth, or is caring for a child 9 in a correctional institution pursuant to subdivisions two or three of 10 section six hundred eleven of this chapter; or (e) who is or is 11 perceived to be lesbian, gay, bisexual, transgender, or intersex. 12 33. "Emergency confinement" means confinement in any cell for no more 13 than twenty-four consecutive hours and no more than forty-eight total 14 hours in any fifteen day period, with at least one hour of out-of-cell 15 recreation for every twenty-four hours. 16 34. "Short-term segregated confinement" means segregated confinement 17 of no more than three consecutive days and six days total within any 18 thirty day period. 19 35. "Extended segregated confinement" means segregated confinement of 20 no more than fifteen consecutive days and twenty days total within any 21 sixty day period. 22 36. "Residential rehabilitation unit" means secure and separate units 23 used for therapy, treatment, and rehabilitative programming of people 24 who would be placed in segregated confinement for more than fifteen 25 days. Such units are therapeutic and trauma-informed, and aim to address 26 individual treatment and rehabilitation needs and underlying causes of 27 problematic behaviors. 28 § 4. Subdivision 6 of section 137 of the correction law is amended by 29 adding eight new paragraphs (g), (h), (i), (j), (k), (l), (m), and (n) 30 to read as follows: 31 (g) Persons in a special population as defined in subdivision thirty- 32 two of section two of this chapter shall not be placed in segregated 33 confinement for any length of time. Any such persons the department 34 would otherwise place in segregated confinement shall remain in general 35 population or be diverted to a residential rehabilitation unit. If a 36 person in a special population is placed in emergency confinement for 37 more than sixteen hours, he or she shall be allowed out-of-cell at least 38 four hours. 39 (h) No person may be in segregated confinement for longer than neces- 40 sary and never more than fifteen consecutive days nor twenty total days 41 within any sixty day period. At these limits, persons must be released 42 from segregated confinement or diverted to a separate secure residential 43 rehabilitation unit. 44 (i) (i) All segregated confinement and residential rehabilitation 45 units shall create the least restrictive environment necessary for the 46 safety of residents, staff, and the security of the facility. 47 (ii) Persons in segregated confinement shall be allowed out-of-cell at 48 least four hours per day, including at least one hour for recreation. 49 Persons in residential rehabilitation units shall be allowed at least 50 six hours per day out-of-cell for programming, services, treatment, 51 and/or meals, and an additional minimum of one hour for recreation. 52 Recreation in all units shall take place in a congregate setting, unless 53 exceptional circumstances mean doing so would create a significant and 54 unreasonable risk to the safety and security of other incarcerated 55 persons, staff, or the facility.S. 3824 3 1 (iii) Persons in segregated confinement and residential rehabilitation 2 units shall: (A) receive at least comparable medical and mental health 3 care to general population, including obstetrical and gynecological 4 services, in a setting ensuring privacy and confidentiality; (B) have 5 their basic needs met in a manner comparable to general population, and 6 never have restricted diets nor any order restricting any basic need 7 imposed as a form of punishment; (C) if in a residential rehabilitation 8 unit be able to retain all their property with them; (D) have comparable 9 access to all services and materials as in general population; and (E) 10 be able to retain program materials, complete program assignments, and 11 continue upon return all uncompleted programs they were in prior to 12 placement in segregated confinement or a residential rehabilitation 13 unit. 14 (iv) Within ten days of admission to a residential rehabilitation 15 unit, an assessment committee comprised of program, rehabilitation, 16 mental health, and security staff shall administer an assessment and 17 develop in collaboration with the resident an individual rehabilitation 18 plan, based upon the person's medical, mental health, and programming 19 needs, that identifies specific goals and programs, treatment, and 20 services to be offered, with projected time frames for completion and 21 release from the residential rehabilitation unit. 22 (v) Residents in residential rehabilitation units shall have access to 23 programs and jobs comparable to all core out-of-cell programs in general 24 population. Such residents shall also have access to additional out-of- 25 cell, trauma-informed therapeutic programming aimed at promoting 26 personal development, addressing underlying causes of problematic behav- 27 ior resulting in placement in a residential rehabilitation unit, and 28 helping prepare for discharge from the unit and to the community. 29 (vi) If the department establishes that a person committed an act 30 defined in subparagraph (iii) of paragraph (j) of this subdivision while 31 in segregated confinement or a residential rehabilitation unit and poses 32 a significant and unreasonable risk to the safety and security of other 33 residents or staff, the department may restrict that person's partic- 34 ipation in programming and out-of-cell time as necessary for the safety 35 of other residents and staff. If restrictions are imposed in segregated 36 confinement, the department must still provide at least two hours out- 37 of-cell time. If restrictions are imposed in a residential rehabili- 38 tation unit, the department shall develop a new rehabilitation plan, 39 provide at least three hours out-of-cell time, and on each day program- 40 ming restrictions are imposed provide at least two hours of out-of-cell 41 one-on-one therapy with the resident and one hour of out-of-cell recre- 42 ation. The department shall remove all restrictions within fifteen days, 43 and may not impose new restrictions unless the person commits a new act 44 defined in subparagraph (iii) of paragraph (j) of this subdivision. 45 (vii) Restraints shall not be used when residents leave a cell or 46 housing area for on-unit operations, unless a resident was found at a 47 hearing to have committed an act of violence on the residential rehabil- 48 itation unit within the previous seven days or is currently acting in an 49 unacceptably violent manner, and not using restraints would create a 50 significant and unreasonable risk to the safety and security of other 51 residents or staff. 52 (viii) There shall be a presumption against the imposition of misbe- 53 havior reports, pursuit of disciplinary charges, or imposition of addi- 54 tional time in segregated confinement for individuals in segregated 55 confinement or residential rehabilitation units. The department shall 56 use other non-disciplinary interventions to address any problematicS. 3824 4 1 behavior. No resident shall receive segregated confinement time while in 2 segregated confinement or a residential rehabilitation unit except where 3 it is determined pursuant to a disciplinary hearing that he or she 4 committed one or more act listed in subparagraph (iii) of paragraph (j) 5 of this subdivision while on the unit, and that he or she poses a 6 significant and unreasonable risk to the safety of residents or staff, 7 or the security of the facility. 8 (j) (i) The department may place a person in emergency confinement 9 without a hearing if necessary for immediately defusing a substantial 10 and imminent threat to safety or security of incarcerated persons or 11 staff. 12 (ii) The department is encouraged to use responses other than segre- 13 gated confinement in response to department rule violations. The depart- 14 ment may place a person in short term segregated confinement if it 15 determines, pursuant to an evidentiary hearing, that the person commit- 16 ted a department rule violation warranting such confinement and the 17 length of segregated confinement imposed is proportionate to the 18 violation. 19 (iii) The department may place a person in extended segregated 20 confinement or a residential rehabilitation unit only if, pursuant to an 21 evidentiary hearing, it determines the person committed, while under 22 department custody, or prior to custody if the commissioner or his or 23 her designee determines in writing based on specific objective criteria 24 the acts were so heinous or destructive that general population housing 25 creates a significant risk of imminent serious physical injury to staff 26 or other incarcerated persons, one of the following acts: (A) causing or 27 attempting to cause serious physical injury or death to another person; 28 (B) compelling or attempting to compel another person, by force or 29 threat of force, to engage in a sexual act; (C) extorting another, by 30 force or threat of force, for property or money; (D) coercing another, 31 by force or threat of force, to violate any rule; (E) leading, organiz- 32 ing, or inciting a serious disturbance that results in the taking of a 33 hostage, major property damage, or physical harm to another person; (F) 34 procuring deadly weapons or other dangerous contraband that poses a 35 serious threat to the security of the institution; or (G) escaping, 36 attempting to escape or facilitating an escape from a facility, or while 37 under supervision outside of such a facility, resulting in physical harm 38 or threatened physical harm to others, or in major destruction to the 39 physical plant. 40 (iv) No person may be held in segregated confinement for protective 41 custody. Any unit used for protective custody must, at a minimum, 42 conform to requirements governing residential rehabilitation units under 43 paragraphs (i), (l), (m), and (n) of this subdivision. When applied to a 44 person in protective custody, the criteria in subparagraph (ii) and 45 clause (A) of subparagraph (iii) of paragraph (l) of this subdivision 46 shall be that "the person still is in need of protective custody"; and 47 the criteria in subparagraph (iv) of paragraph (l) of this subdivision 48 shall be that "the person is in voluntary protective custody." 49 (k) (i) All hearings to determine if a person may be placed in short 50 term or extended segregated confinement shall occur prior to placement 51 in segregated confinement unless a security supervisor, with written 52 approval of a facility superintendent or designee, reasonably believes 53 the person fits the criteria for extended segregated confinement. If a 54 hearing does not take place prior to placement, it shall occur as soon 55 as reasonably practicable and at most within five days of transfer 56 unless the charged person seeks more time. All hearings shall at a mini-S. 3824 5 1 mum comply with the standards of all department rules for disciplinary 2 hearings as of January first, two thousand eighteen. Persons at all 3 hearings shall be permitted to be represented by any pro bono or 4 retained attorney, or law student; or any paralegal or incarcerated 5 person unless the department reasonably disapproves of such paralegal or 6 incarcerated person based upon objective written criteria developed by 7 the department concerning qualifications to be an assistant at a hear- 8 ing. 9 (ii) On notification a person is to be placed in segregated confine- 10 ment and prior to such placement, he or she shall be assessed by rele- 11 vant licensed medical, social, and/or mental health professionals to 12 determine whether he or she belongs to any special population as defined 13 in subdivision thirty-two of section two of this chapter. If a person 14 disputes a determination that he or she is not in a special population, 15 he or she shall be provided a hearing within seventy-two hours of place- 16 ment in segregated confinement to challenge such determination. 17 (l) (i) Any sanction imposed on an incarcerated person requiring 18 segregated confinement shall run while the person is in a residential 19 rehabilitation unit and the person shall be discharged from the unit 20 before or at the time that sanction expires. 21 (ii) Within thirty days of admission to a residential rehabilitation 22 unit and every sixty days thereafter, the assessment committee shall 23 review each resident's progress and discharge a resident unless it 24 determines in writing through credible and reliable evidence that there 25 is currently a substantial likelihood that the resident will commit an 26 act listed in subparagraph (iii) of paragraph (j) of this subdivision. 27 (iii) Within one hundred days after admission to a residential reha- 28 bilitation unit and every one hundred twenty days thereafter, a rehabil- 29 itation review committee, comprised of correctional facility executive 30 level program, rehabilitation, and security staff shall discharge a 31 resident from a residential rehabilitation unit unless it determines in 32 writing, after considering the resident's oral statement and any written 33 submissions by the resident or others, that: (A) there is currently a 34 substantial likelihood that the resident will commit an act listed in 35 subparagraph (iii) of paragraph (j) of this subdivision, significant 36 therapeutic reasons exist for keeping the resident in the unit to 37 complete specific program or treatment goals, and remaining in the unit 38 is in the best interest of the resident; or (B) the resident has commit- 39 ted an act listed in subparagraph (iii) of paragraph (j) of this subdi- 40 vision during the one hundred twenty days prior to the review. 41 (iv) If a resident has spent one year in a residential rehabilitation 42 unit or is within sixty days of a fixed or tentatively approved date for 43 release from a correctional facility, he shall be discharged from the 44 unit unless he or she committed an act listed in subparagraph (iii) of 45 paragraph (j) of this subdivision within the prior one hundred eighty 46 days or he or she caused the death of another person while under depart- 47 ment custody or escaped or attempted to escape from department or other 48 police custody and the rehabilitation review committee determines he or 49 she poses a significant and unreasonable risk to the safety or security 50 of incarcerated persons or staff, but in any such case the decision not 51 to discharge such person shall be immediately and automatically 52 subjected to an independent review by the justice center entity with 53 oversight responsibilities under section four hundred one-a of this 54 chapter, with timely notice given to the incarcerated person of the 55 submission of the case to the justice center and of the decision of the 56 justice center. If the justice center disagrees with the decision toS. 3824 6 1 not discharge, the resident will be immediately released from the resi- 2 dential rehabilitation unit. If the justice center agrees with the deci- 3 sion to not discharge, the discharge procedures set forth in this para- 4 graph shall apply including annual reviews by the justice center of a 5 decision by the rehabilitation review committee to refuse to release a 6 resident, however, under no circumstances shall any such person be held 7 in the residential rehabilitation unit for more than three years unless 8 the rehabilitation review committee determines he or she committed an 9 act listed in subparagraph (iii) of paragraph (j) of this subdivision 10 within one hundred eighty days prior to the expiration of the three year 11 period and poses a significant and unreasonable risk to the safety or 12 security of incarcerated persons or staff. 13 (v) After each assessment committee and rehabilitation review commit- 14 tee decision, if a resident is not discharged from the residential reha- 15 bilitation unit, the respective committee shall specify in writing (A) 16 the reasons for the determination and (B) the program, treatment, 17 service, and/or corrective action requirements for discharge. The resi- 18 dent shall be given access to the programs, treatment and services spec- 19 ified, and shall be discharged from the residential rehabilitation unit 20 upon completion unless the resident has committed an act listed in 21 subparagraph (iii) of paragraph (j) of this subdivision during the 22 previous one hundred twenty days. 23 (vi) When a resident is discharged from a residential rehabilitation 24 unit, any remaining sentence to segregated confinement time will be 25 dismissed. If a resident substantially completes his rehabilitation 26 plan, he or she will have all good time restored upon discharge from the 27 unit. 28 (m) All staff, including supervisory staff, working in a segregated 29 confinement or residential rehabilitation unit shall undergo a minimum 30 of forty hours of training prior to working on the unit and twenty-four 31 hours annually thereafter, on substantive content developed in consulta- 32 tion with relevant experts, including trauma, psychiatric and restora- 33 tive justice experts, on topics including, but not limited to, the 34 purpose and goals of the non-punitive therapeutic environment and 35 dispute resolution methods. Prior to presiding over any hearings, all 36 hearing officers shall undergo a minimum of forty hours of training, and 37 eight hours annually thereafter, on relevant topics, including but not 38 limited to, the physical and psychological effects of segregated 39 confinement, procedural and due process rights of the accused, and 40 restorative justice remedies. 41 (n) The department shall make publicly available monthly reports of 42 the number of people as of the first day of each month, and semi-annual 43 and annual cumulative reports of the total number of people, who are (i) 44 in segregated confinement; and (ii) in residential rehabilitation units; 45 along with a breakdown of the number of people (iii) in segregated 46 confinement and (iv) in residential rehabilitation units by (A) age; (B) 47 race; (C) gender; (D) mental health level; (E) health status; (F) drug 48 addiction status; (G) pregnancy status; (H) lesbian, gay, bisexual, 49 transgender, or intersex status; and (I) total continuous length of 50 stay, and total length of stay in the past sixty days, in segregated 51 confinement or a residential rehabilitation unit. 52 § 5. Section 401-a of the correction law is amended by adding a new 53 subdivision 4 to read as follows: 54 4. The justice center shall assess compliance with the terms of, and 55 at least annually report on and make recommendations to the department, 56 legislature, and public in writing, regarding all aspects of segregatedS. 3824 7 1 confinement and residential rehabilitation units in state correctional 2 facilities pursuant to section one hundred thirty-seven of this chapter, 3 including but not limited to policies and practices regarding: (a) 4 placement of persons; (b) special populations; (c) length of time spent; 5 (d) hearings and procedures; (e) conditions, programs, services, care, 6 and treatment; and (f) assessments and rehabilitation plans, and proce- 7 dures and determinations made as to whether persons should remain in 8 residential rehabilitation units. 9 § 6. Subdivision 4 of section 45 of the correction law, as amended by 10 section 15 of subpart A of part C of chapter 62 of the laws of 2011, is 11 amended to read as follows: 12 4. (a) Establish procedures to assure effective investigation of 13 grievances of, and conditions affecting, inmates of local correctional 14 facilities. Such procedures shall include but not be limited to receipt 15 of written complaints, interviews of persons, and on-site monitoring of 16 conditions. In addition, the commission shall establish procedures for 17 the speedy and impartial review of grievances referred to it by the 18 commissioner of the department of corrections and community supervision. 19 (b) The commission shall also assess compliance with the terms of, and 20 at least annually report on and make recommendations to the department, 21 legislature, and public, regarding all aspects of segregated confinement 22 and residential rehabilitation units in facilities governed by section 23 five hundred-k of this chapter, including but not limited to policies 24 and practices for both regarding: (i) placement of persons; (ii) special 25 populations; (iii) length of time spent; (iv) hearings and procedures; 26 (v) conditions, programs, services, care, and treatment; and (vi) 27 assessments and rehabilitation plans, and procedures and determinations 28 made as to whether persons should remain in residential rehabilitation 29 units. 30 § 7. This act shall take effect immediately.
