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A03080 Summary:

BILL NOA03080B
 
SAME ASSAME AS S04784-A
 
SPONSORAubry
 
COSPNSRPerry, Arroyo, Barrett, Steck, Rivera, Gottfried, Cook, Jaffee, Davila, Lupardo, Sepulveda, Mosley, Ortiz, Peoples-Stokes, Skartados, Quart, Weprin, Rosenthal L, Lifton, Abinanti, Pretlow, Bichotte, Barron, Walker, Blake, Rodriguez, Fahy, Titone, McDonald, Cahill, Joyner, Jenne, Benedetto, Solages, Richardson, Pichardo, Hyndman, Stirpe, Titus, Kim, Simotas, Otis, Mayer, Jean-Pierre, Dickens, Bronson, Hunter, Rozic, Carroll, Crespo, De La Rosa, Dilan, Vanel, D'Urso, Galef, Taylor, Niou, Pellegrino, Espinal
 
MLTSPNSRCusick, Englebright, Glick, Hevesi, Lavine, Lentol, Magee, Ramos, Seawright, Simon, Thiele, Wright
 
Amd 137, 138, 2, 401, 401-a, 500-k & 45, Cor L
 
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.
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A03080 Actions:

BILL NOA03080B
 
01/26/2017referred to correction
01/03/2018referred to correction
02/08/2018amend and recommit to correction
02/08/2018print number 3080a
02/12/2018amend and recommit to correction
02/12/2018print number 3080b
02/27/2018reported referred to codes
03/05/2018reported referred to ways and means
05/08/2018reported
05/10/2018advanced to third reading cal.861
06/12/2018passed assembly
06/12/2018delivered to senate
06/12/2018REFERRED TO RULES
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A03080 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3080B
 
SPONSOR: Aubry (MS)
  TITLE OF BILL: An act to amend the correction law, in relation to restricting the use of segregated confinement and creating alternative therapeutic and rehabilitative confinement options   PURPOSE: This bill will be known as the "Humane Alternatives to Long-Term Soli- tary Confinement" Act (the HALT Solitary Confinement Act.) This bill would limit the time an inmate can spend in segregated confinement, end the segregated confinement of vulnerable people, restrict the criteria that can result in such confinement, improve conditions of confinement, and create more humane and effective alternatives to such confinement.   SUMMARY OF PROVISIONS: Section 1 clarifies that the bill's provisions apply to all types and locations of segregated confinement. Section 2 defines "special populations" and "residential rehabilitation units". Section 3 prohibits the use of special diets as punishment. Section 4 provides for mental health screening and a heightened level of care for prisoners placed into segregated confinement or residential rehabilitation units. Section 5 prohibits placement of individuals who are in one of the special populations in SHU and limits their keep-lock placement to 48 hours; prohibits placement of any inmate in segregated confinement for more than 15 consecutive days or 20 out of 60 days unless specific acts are committed while in such confinement; specifies certain conditions of confinement and programs within residential rehabilitation units; creates a safety exception for people committing serious disciplinary infractions in SHU and residential rehabilitation units; prohibits the use of restraints in the residential rehabilitation units unless neces- sary for safety and security; prohibits placement of individuals in protective custody in segregated confinement; provides for periodic review of a person's placement in residential rehabilitation units; reinstates lost good time for successful completion of the residential rehabilitation unit program goals; provides for training of staff; and provides for public reporting. Section 6 creates a preference for non-disciplinary interventions by the department. Section 7 provides that services in residential mental health treatment units shall be at least comparable to services in residential rehabili- tation units. Section 8 provides that inmates in residential mental health treatment units may be moved to residential rehabilitation units under certain circumstances. Section 9 limits the removal of inmates with mental illness from resi- dential mental health units to residential rehabilitation units unless they commit specified acts of misconduct. Section 10 provides for staff training. Section 11 provides for Justice Center oversight of segregated confine- ment and residential rehabilitation units. Section 12 provides for Commission of Correction oversight of segregated confinement in jails. Section 13 provides for sections of the law to apply to jails. Section 14 is the effective date.   JUSTIFICATION: This bill aims to make New York's prison and jail practices more humane. The bill limits the length of time anyone can spend in segregated confinement, restricts the criteria that can result in such confinement, provides additional procedural protections prior to such confinement, and exempts certain vulnerable groups. The bill also provides an alter- native mechanism for working with people who engage in serious violence or other problematic behavior. Studies have consistently found that subjecting people to segregated confinement for twenty-two to twenty-four hours a day without meaningful human contact, programming, or therapy can cause deep and permanent psychological, physical, developmental, and social harm. People often have more difficulty complying with prison rules after being placed in segregated confinement. Segregated confinement can be particularly devastating for certain vulnerable people, such as young or elderly people, pregnant women, and people with disabilities or trauma histo- ries. Other states have dramatically reduced the number of people in segregated confinement, and seen positive benefits in terms of safety and decreased violence. Despite the tremendous harm caused by massive isolation of thousands of incarcerated persons, New York prisons and jails currently impose segre- gated confinement routinely for too long a period of time. On any given day, there are nearly 3,000 people, disproportionately people of color, in state prisons in Special Housing Units (SHU) and thousands more in other forms of isolation. There are also hundreds of people in segre- gated confinement in jails in New York City alone. Despite claims that segregated confinement is used in response to the most violent behavior, five out of six disciplinary infractions that result in SHU time in New York prisons are for non-violent conduct. Moreover, people routinely suffer in segregated confinement for months, years,and even decades in New York. A growing chorus of individuals, organizations, and policy-makers has called for a dramatic transformation and curtailment of the use of segregated confinement. The United Nations Special Rapporteur on Torture concluded that solitary confinement can amount to torture and recom- mended abolishing its use beyond 15 days and prohibiting any use of solitary for vulnerable groups or purposes of punishment. The New York Civil Liberties Union and others have issued reports documenting the arbitrary and unjustified use of segregated confinement in New York and the negative impact its use has on incarcerated persons, staff, and safety in our prisons and communities. The New York State Bar Associ- ation has called upon the state and city corrections departments to profoundly restrict the use of segregated confinement, end segregated confinement beyond 15 days, adopt stringent criteria for any separation and ensure any separation is for the briefest period and in the least restrictive conditions practicable. This bill takes up the growing call to limit segregated confinement and provide more humane and effective alternatives.   LEGISLATIVE HISTORY: A.8588-A was amended and recommitted to correction in 2014. A.4401 was referred to correction in 2015 and 2016. A.3080 was amended in 2018.   FISCAL IMPLICATIONS: To be determined.   LOCAL FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act will take effect one year after it becomes law.
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A03080 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3080--B
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 26, 2017
                                       ___________
 
        Introduced  by  M.  of  A. AUBRY, PERRY, ARROYO, BARRETT, STECK, RIVERA,
          GOTTFRIED, COOK, JAFFEE, DAVILA, LUPARDO,  SEPULVEDA,  MOSLEY,  ORTIZ,
          PEOPLES-STOKES,   SKARTADOS,   QUART,  WEPRIN,  L. ROSENTHAL,  LIFTON,
          ABINANTI, PRETLOW, BICHOTTE, BARRON, WALKER, BLAKE,  RODRIGUEZ,  FAHY,
          TITONE,  McDONALD,  CAHILL, HARRIS, JOYNER, JENNE, BENEDETTO, SOLAGES,
          RICHARDSON, PICHARDO, HYNDMAN,  STIRPE,  TITUS,  KIM,  SIMOTAS,  OTIS,
          MAYER,  JEAN-PIERRE, DICKENS, BRONSON, HUNTER, ROZIC, CARROLL, CRESPO,
          DE LA ROSA, DILAN, VANEL, D'URSO, GALEF -- Multi-Sponsored by -- M. of
          A. CUSICK, ENGLEBRIGHT, GLICK, HEVESI, LAVINE, LENTOL,  MAGEE,  RAMOS,
          SEAWRIGHT,  SIMON,  THIELE,  WRIGHT  --  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  --  again  reported  from  said  committee with amendments,
          ordered reprinted as amended and recommitted to said committee
 
        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. Subdivision 23 of section 2 of the correction law, as added
     2  by chapter 1 of the laws of 2008, is amended to read as follows:
     3    23.  "Segregated  confinement" means the [disciplinary] confinement of
     4  an inmate in [a special housing unit or in a separate  keeplock  housing
     5  unit.    Special  housing  units and separate keeplock units are housing
     6  units that consist of cells grouped so as to provide separation from the
     7  general population, and may be used to house inmates  confined  pursuant
     8  to  the  disciplinary  procedures  described in regulations] any form of
     9  cell confinement for more than seventeen hours a day  other  than  in  a
    10  facility-wide  emergency  or  for  the  purpose  of providing medical or
    11  mental health treatment. Cell confinement that  is  implemented  due  to
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08286-08-8

        A. 3080--B                          2
 
     1  medical  or  mental  health treatment shall be within a clinical area in
     2  the correctional facility or in as  close  proximity  to  a  medical  or
     3  mental health unit as possible.
     4    §  2.  Section  2  of  the correction law is amended by adding two new
     5  subdivisions 32 and 33 to read as follows:
     6    32. "Special populations" means any person: (a)  twenty-one  years  of
     7  age  or  younger; (b) fifty-five years of age or older; (c) with a disa-
     8  bility as defined in paragraph (a) of subdivision twenty-one of  section
     9  two  hundred ninety-two of the executive law; or (d) who is pregnant, in
    10  the first eight weeks of the post-partum recovery  period  after  giving
    11  birth,  or  caring for a child in a correctional institution pursuant to
    12  subdivisions two or three of section six hundred eleven of this chapter.
    13    33. "Residential rehabilitation unit" means a  separate  housing  unit
    14  used for therapy, treatment, and rehabilitative programming of incarcer-
    15  ated  people  who have been determined to require more than fifteen days
    16  of segregated confinement pursuant to department proceedings. Such units
    17  shall be therapeutic and trauma-informed, and aim to address  individual
    18  treatment  and rehabilitation needs and underlying causes of problematic
    19  behaviors.
    20    § 3. Paragraph (a) of subdivision 6 of section 137 of  the  correction
    21  law,  as  amended by chapter 490 of the laws of 1974, is amended to read
    22  as follows:
    23    (a) The inmate shall be supplied with a sufficient quantity of  whole-
    24  some and nutritious food[, provided, however, that such food need not be
    25  the  same  as  the  food  supplied  to  inmates who are participating in
    26  programs of the facility];
    27    § 4. Paragraph (d) of subdivision 6 of section 137 of  the  correction
    28  law,  as  added  by chapter 1 of the laws of 2008, is amended to read as
    29  follows:
    30    (d) (i) Except as set forth in clause (E) of subparagraph (ii) of this
    31  paragraph, the department, in consultation  with  mental  health  clini-
    32  cians,  shall  divert  or remove inmates with serious mental illness, as
    33  defined in paragraph (e) of this subdivision, from  segregated  confine-
    34  ment  or  confinement  in  a residential rehabilitation unit, where such
    35  confinement could potentially be for a period in excess of thirty  days,
    36  to  a  residential  mental health treatment unit.  Nothing in this para-
    37  graph shall be deemed to prevent the disciplinary process from  proceed-
    38  ing in accordance with department rules and regulations for disciplinary
    39  hearings.
    40    (ii)  (A) Upon placement of an inmate into segregated confinement or a
    41  residential rehabilitation unit at a level one or level two facility,  a
    42  suicide  prevention  screening instrument shall be administered by staff
    43  from the department or the office of mental health who has been  trained
    44  for that purpose. If such a screening instrument reveals that the inmate
    45  is  at risk of suicide, a mental health clinician shall be consulted and
    46  appropriate safety precautions shall be taken. Additionally, within  one
    47  business day of the placement of such an inmate into segregated confine-
    48  ment  at a level one or level two facility, the inmate shall be assessed
    49  by a mental health clinician.
    50    (B) Upon placement of an inmate into segregated confinement or a resi-
    51  dential rehabilitation unit at a level three or level four  facility,  a
    52  suicide  prevention  screening instrument shall be administered by staff
    53  from the department or the office of mental health who has been  trained
    54  for that purpose. If such a screening instrument reveals that the inmate
    55  is  at risk of suicide, a mental health clinician shall be consulted and
    56  appropriate safety precautions shall be taken.  All  inmates  placed  in

        A. 3080--B                          3
 
     1  segregated  confinement  or a residential rehabilitation unit at a level
     2  three or level four facility shall be assessed by a mental health clini-
     3  cian, within [fourteen] seven days of  such  placement  into  segregated
     4  confinement.
     5    (C)  At  the  initial assessment, if the mental health clinician finds
     6  that an inmate suffers from a serious mental illness, that person  shall
     7  be  diverted  or  removed  from  segregated confinement or a residential
     8  rehabilitation unit and a recommendation shall be  made  whether  excep-
     9  tional  circumstances,  as described in clause (E) of this subparagraph,
    10  exist. In a facility with a joint case management committee, such recom-
    11  mendation shall be made by such committee. In a facility without a joint
    12  case management committee, the recommendation shall be made jointly by a
    13  committee consisting of the facility's  highest  ranking  mental  health
    14  clinician, the deputy superintendent for security, and the deputy super-
    15  intendent for program services, or their equivalents. Any such recommen-
    16  dation  shall  be reviewed by the joint central office review committee.
    17  The administrative process described in this clause shall  be  completed
    18  within  [fourteen]  seven  days  of  the  initial assessment, and if the
    19  result of such process is that the inmate should be removed from  segre-
    20  gated  confinement  or  a  residential rehabilitation unit, such removal
    21  shall occur as soon as practicable, but in no event more  than  seventy-
    22  two hours from the completion of the administrative process. Pursuant to
    23  paragraph  (g) of this subdivision, nothing in this section shall permit
    24  the placement of an incarcerated person with serious mental illness into
    25  segregated confinement at any time, even for the purposes of assessment.
    26    (D) If an inmate with a serious mental  illness  is  not  diverted  or
    27  removed to a residential mental health treatment unit, such inmate shall
    28  be  diverted  to  a  residential rehabilitation unit and reassessed by a
    29  mental health clinician within fourteen days of the  initial  assessment
    30  and at least once every fourteen days thereafter.  After each such addi-
    31  tional  assessment, a recommendation as to whether such inmate should be
    32  removed from [segregated confinement] a residential rehabilitation  unit
    33  shall  be made and reviewed according to the process set forth in clause
    34  (C) of this subparagraph.
    35    (E) A recommendation or determination whether to remove an inmate from
    36  segregated confinement or a residential rehabilitation unit  shall  take
    37  into  account the assessing mental health clinicians' opinions as to the
    38  inmate's mental condition and treatment needs, and shall also take  into
    39  account  any  safety  and  security  concerns that would be posed by the
    40  inmate's removal, even if additional restrictions  were  placed  on  the
    41  inmate's  access  to  treatment,  property,  services or privileges in a
    42  residential mental health treatment unit. A recommendation  or  determi-
    43  nation  shall direct the inmate's removal from segregated confinement or
    44  a residential rehabilitation unit except in  the  following  exceptional
    45  circumstances:  (1)  when  the  reviewer finds that removal would pose a
    46  substantial risk to the safety of the inmate  or  other  persons,  or  a
    47  substantial  threat  to the security of the facility, even if additional
    48  restrictions were placed on the inmate's access to treatment,  property,
    49  services or privileges in a residential mental health treatment unit; or
    50  (2)  when  the  assessing  mental  health clinician determines that such
    51  placement is in the inmate's best interests based on his or  her  mental
    52  condition  and  that removing such inmate to a residential mental health
    53  treatment unit would be detrimental to his or her mental condition.  Any
    54  determination  not  to remove an inmate with serious mental illness from
    55  segregated confinement or a residential  rehabilitation  unit  shall  be
    56  documented in writing and include the reasons for the determination.

        A. 3080--B                          4
 
     1    (iii)  Inmates  with  serious  mental  illness who are not diverted or
     2  removed from [segregated confinement] a residential rehabilitation  unit
     3  shall  be  offered a heightened level of mental health care, involving a
     4  minimum of [two] three hours [each day, five  days  a  week,]  daily  of
     5  out-of-cell therapeutic treatment and programming. This heightened level
     6  of care shall not be offered only in the following circumstances:
     7    (A)  The  heightened level of care shall not apply when an inmate with
     8  serious mental illness does not, in the reasonable judgment of a  mental
     9  health  clinician,  require  the heightened level of care. Such determi-
    10  nation shall be documented with a written statement of the basis of such
    11  determination and shall be reviewed by the Central New York  Psychiatric
    12  Center clinical director or his or her designee. Such a determination is
    13  subject  to  change  should  the  inmate's  clinical status change. Such
    14  determination shall be reviewed and documented by a mental health clini-
    15  cian every thirty days, and in consultation with the  Central  New  York
    16  Psychiatric  Center  clinical  director  or his or her designee not less
    17  than every ninety days.
    18    (B) The heightened level  of  care  shall  not  apply  in  exceptional
    19  circumstances when providing such care would create an unacceptable risk
    20  to the safety and security of inmates or staff. Such determination shall
    21  be  documented  by  security  personnel  together with the basis of such
    22  determination and shall be reviewed by the facility  superintendent,  in
    23  consultation  with  a mental health clinician, not less than every seven
    24  days for as long as the inmate remains  in  [segregated  confinement]  a
    25  residential  rehabilitation unit.  The facility shall attempt to resolve
    26  such exceptional circumstances so that the heightened level of care  may
    27  be  provided.  If  such  exceptional circumstances remain unresolved for
    28  thirty days, the matter shall be referred to the  joint  central  office
    29  review committee for review.
    30    (iv)  [Inmates  with  serious  mental  illness who are not diverted or
    31  removed from segregated confinement shall not be placed on a  restricted
    32  diet,  unless there has been a written determination that the restricted
    33  diet is necessary for reasons of safety and security.  If  a  restricted
    34  diet is imposed, it shall be limited to seven days, except in the excep-
    35  tional  circumstances  where  the joint case management committee deter-
    36  mines that limiting the restricted diet to  seven  days  would  pose  an
    37  unacceptable  risk  to  the  safety and security of inmates or staff. In
    38  such case, the need for a restricted diet shall  be  reassessed  by  the
    39  joint case management committee every seven days.
    40    (v)]All  inmates in segregated confinement in a level one or level two
    41  facility who are not assessed with  a  serious  mental  illness  at  the
    42  initial assessment shall be offered at least one interview with a mental
    43  health  clinician  within  [fourteen] seven days of their initial mental
    44  health assessment, [and additional interviews at least every thirty days
    45  thereafter,] unless the mental  health  clinician  at  the  most  recent
    46  interview  recommends an earlier interview or assessment. All inmates in
    47  [segregated confinement] a residential rehabilitation unit  in  a  level
    48  three  or level four facility who are not assessed with a serious mental
    49  illness at the initial assessment shall be offered at least  one  inter-
    50  view  with a mental health clinician within thirty days of their initial
    51  mental health assessment, and additional interviews at least every nine-
    52  ty days thereafter, unless the  mental  health  clinician  at  the  most
    53  recent interview recommends an earlier interview or assessment.
    54    §  5. Subdivision 6 of section 137 of the correction law is amended by
    55  adding eight new paragraphs (g), (h), (i), (j), (k), (l), (m) and (n) to
    56  read as follows:

        A. 3080--B                          5
 
     1    (g) Persons in a special population as defined in subdivision  thirty-
     2  two  of  section  two  of this chapter shall not be placed in segregated
     3  confinement for any length of time, except  in  keeplock  for  a  period
     4  prior to a disciplinary hearing pursuant to paragraph (k) of this subdi-
     5  vision.    Individuals in a special population who are in keeplock prior
     6  to a disciplinary hearing shall be given seven hours a  day  out-of-cell
     7  time  or  shall  be  transferred to a residential rehabilitation unit or
     8  residential mental health treatment unit as expeditiously  as  possible,
     9  but in no case longer than forty-eight hours from the time an individual
    10  is admitted to keeplock.
    11    (h)  No person may be placed in segregated confinement for longer than
    12  necessary and no more than fifteen consecutive days or twenty total days
    13  within any sixty day period.   At  these  limits,  he  or  she  must  be
    14  released  from segregated confinement or diverted to a separate residen-
    15  tial rehabilitation unit. If placement  of  such  person  in  segregated
    16  confinement  would exceed the twenty-day limit and the department estab-
    17  lishes that the person committed an act defined in subparagraph (ii)  of
    18  paragraph  (j)  of this subdivision, the department may place the person
    19  in segregated confinement until admission  to  a  residential  rehabili-
    20  tation unit can be effectuated. Such admission to a residential rehabil-
    21  itation  unit  shall  occur  as expeditiously as possible and in no case
    22  take longer than forty-eight hours from the time such person  is  placed
    23  in segregated confinement.
    24    (i)  (i)  All  segregated  confinement  and residential rehabilitation
    25  units shall create the least restrictive environment necessary  for  the
    26  safety of incarcerated persons, staff, and the security of the facility.
    27    (ii)  Persons  in  segregated confinement shall be offered out-of-cell
    28  programming at least four hours per day, including at least one hour for
    29  recreation.  Persons admitted to residential rehabilitation units  shall
    30  be  offered  at least six hours of daily out-of-cell congregate program-
    31  ming, services, treatment, and/or meals, with an additional  minimum  of
    32  one  hour  for  recreation. Recreation in all residential rehabilitation
    33  units shall take place  in  a  congregate  setting,  unless  exceptional
    34  circumstances  mean doing so would create a significant and unreasonable
    35  risk to the safety and security of other incarcerated persons, staff, or
    36  the facility.
    37    (iii) No limitation on services, treatment, or  basic  needs  such  as
    38  clothing,  food and bedding shall be imposed as a form of punishment. If
    39  provision of any such services, treatment or basic needs to an  individ-
    40  ual  would  create a significant and unreasonable risk to the safety and
    41  security of incarcerated persons, staff, or the facility, such services,
    42  treatment or basic needs may be withheld  until  it  reasonably  appears
    43  that  the  risk  has ended.   The department shall not impose restricted
    44  diets or any other change in diet as a form of punishment. Persons in  a
    45  residential  rehabilitation  unit  shall  have  access  to  all of their
    46  personal property unless an individual determination is made that having
    47  a specific item would pose a significant and unreasonable  risk  to  the
    48  safety of incarcerated persons or staff or the security of the unit.
    49    (iv)  Upon admission to a residential rehabilitation unit, program and
    50  mental health staff shall administer assessments and develop an individ-
    51  ual rehabilitation plan in consultation with the  resident,  based  upon
    52  his  or  her  medical,  mental  health, and programming needs. Such plan
    53  shall identify specific goals and programs, treatment, and  services  to
    54  be offered, with projected time frames for completion and discharge from
    55  the residential rehabilitation unit.

        A. 3080--B                          6
 
     1    (v)  An incarcerated person in a residential rehabilitation unit shall
     2  have access to programs and work assignments comparable to core programs
     3  and work assignments in general population.  Such  incarcerated  persons
     4  shall also have access to additional out-of-cell, trauma-informed thera-
     5  peutic  programming  aimed at promoting personal development, addressing
     6  underlying causes of problematic behavior resulting in  placement  in  a
     7  residential  rehabilitation unit, and helping prepare for discharge from
     8  the unit and to the community.
     9    (vi) If the department establishes that  a  person  committed  an  act
    10  defined  in subparagraph (ii) of paragraph (j) of this subdivision while
    11  in segregated confinement or a residential rehabilitation unit and poses
    12  a significant and unreasonable risk to the safety and security of  other
    13  incarcerated persons or staff, the department may restrict such person's
    14  participation in programming and out-of-cell activities as necessary for
    15  the safety of other incarcerated persons and staff. If such restrictions
    16  are imposed, the department must provide at least four hours out-of-cell
    17  time  daily, including at least two hours of therapeutic programming and
    18  two hours of recreation, and must make reasonable efforts  to  reinstate
    19  access  to  programming  as  soon  as  possible.  In  no  case  may such
    20  restrictions extend beyond fifteen days unless the person commits a  new
    21  act  defined herein justifying restrictions on program access, or if the
    22  commissioner and, when appropriate, the commissioner  of  mental  health
    23  personally  reasonably  determine that the person poses an extraordinary
    24  and unacceptable risk of imminent harm to  the  safety  or  security  of
    25  incarcerated  persons  or staff.   Any extension of program restrictions
    26  beyond fifteen days must be meaningfully reviewed and approved at  least
    27  every  fifteen  days  by  the commissioner and, when appropriate, by the
    28  commissioner of mental health. Each review must consider the  impact  of
    29  therapeutic  programming  provided  during the fifteen-day period on the
    30  person's risk of imminent harm and the commissioner must  articulate  in
    31  writing,  with  a copy provided to the incarcerated person, the specific
    32  reason why the person currently poses an extraordinary and  unacceptable
    33  risk  of imminent harm to the safety or security of incarcerated persons
    34  or staff. In no case may restrictions imposed by the commissioner extend
    35  beyond ninety days unless the person commits a new  act  defined  herein
    36  justifying restrictions on program access.
    37    (vii)  Restraints  shall  not  be  used  when incarcerated persons are
    38  participating in out-of-cell activities within a  residential  rehabili-
    39  tation  unit unless an individual assessment is made that restraints are
    40  required because of a significant and unreasonable risk  to  the  safety
    41  and security of other incarcerated persons or staff.
    42    (j)  (i)  The  department may place a person in segregated confinement
    43  for up to three consecutive days and no longer  than  six  days  in  any
    44  thirty  day period if, pursuant to an evidentiary hearing, it determines
    45  that the person violated department rules  which  permit  a  penalty  of
    46  segregated  confinement. The department may not place a person in segre-
    47  gated confinement for longer than three consecutive  days  or  six  days
    48  total  in a thirty day period unless the provisions of subparagraph (ii)
    49  of this paragraph are met.
    50    (ii) The department may  place  a  person  in  segregated  confinement
    51  beyond the limits of subparagraph (i) of this paragraph or in a residen-
    52  tial rehabilitation unit only if, pursuant to an evidentiary hearing, it
    53  determines  by  written  decision  that  the person committed one of the
    54  following acts and if the commissioner or his or her designee determines
    55  in writing based on specific objective criteria the acts were so heinous
    56  or destructive that placement of the individual  in  general  population

        A. 3080--B                          7

     1  housing  creates  a significant risk of imminent serious physical injury
     2  to staff or other incarcerated persons, and creates an unreasonable risk
     3  to the security of the facility:
     4    (A) causing or attempting to cause serious physical injury or death to
     5  another  person  or  making  an imminent threat of such serious physical
     6  injury or death if the person has a history  of  causing  such  physical
     7  injury  or death and the commissioner and, when appropriate, the commis-
     8  sioner of mental health or their  designees  reasonably  determine  that
     9  there is a strong likelihood that the person will carry out such threat.
    10  The  commissioner  of  mental  health  or  his  or her designee shall be
    11  involved in such determination if the person  is  or  has  been  on  the
    12  mental health caseload or appears to require psychiatric attention.  The
    13  department  and  the  office of mental health shall promulgate rules and
    14  regulations pertaining to this clause;
    15    (B) compelling or attempting to compel another  person,  by  force  or
    16  threat of force, to engage in a sexual act;
    17    (C)  extorting  another,  by force or threat of force, for property or
    18  money;
    19    (D) coercing another, by force or threat  of  force,  to  violate  any
    20  rule;
    21    (E)  leading,  organizing,  inciting,  or  attempting to cause a riot,
    22  insurrection, or other similarly serious disturbance that results in the
    23  taking of a hostage, major property damage, or physical harm to  another
    24  person;
    25    (F)  procuring deadly weapons or other dangerous contraband that poses
    26  a serious threat to the security of the institution; or
    27    (G) escaping, attempting to escape or facilitating an  escape  from  a
    28  facility  or  escaping  or  attempting to escape while under supervision
    29  outside such facility.
    30    For purposes of this section, attempting to cause a  serious  disturb-
    31  ance  or to escape shall only be determined to have occurred if there is
    32  a clear finding that the inmate  had  the  intent  to  cause  a  serious
    33  disturbance  or  the intent to escape and had completed significant acts
    34  in the advancement of the attempt to create  a  serious  disturbance  or
    35  escape. Evidence of withdrawal or abandonment of a plan to cause a seri-
    36  ous disturbance or to escape shall negate a finding of intent.
    37    (iii)  No person may be placed in segregated confinement or a residen-
    38  tial rehabilitation unit based on the same  act  or  incident  that  was
    39  previously used as the basis for such placement.
    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.
    43    (k)  All hearings to determine if a person may be placed in segregated
    44  confinement shall occur prior to  placement  in  segregated  confinement
    45  unless a security supervisor, with written approval of a facility super-
    46  intendent or designee, reasonably believes the person fits the specified
    47  criteria  for  segregated  confinement in subparagraph (ii) of paragraph
    48  (j) of this subdivision. If a hearing  does  not  take  place  prior  to
    49  placement,  it shall occur as soon as reasonably practicable and at most
    50  within five days of such placement unless the  charged  person  seeks  a
    51  postponement of the hearing. Persons at such hearings shall be permitted
    52  to be represented by any attorney or law student, or by any paralegal or
    53  incarcerated person unless the department reasonably disapproves of such
    54  paralegal  or  incarcerated person based upon objective written criteria
    55  developed by the department.

        A. 3080--B                          8
 
     1    (l) (i) Any sanction  imposed  on  an  incarcerated  person  requiring
     2  segregated  confinement  shall  run while the person is in a residential
     3  rehabilitation unit and the person shall be  discharged  from  the  unit
     4  before  or  at  the time such sanction expires. If a person successfully
     5  completes  his  or  her rehabilitation plan before the sanction expires,
     6  the person shall have a right to be discharged from the unit  upon  such
     7  completion.
     8    (ii) If an incarcerated person has not been discharged from a residen-
     9  tial  rehabilitation unit within one year of initial admission to such a
    10  unit or is within sixty days of a fixed or tentatively approved date for
    11  release from a correctional facility, he or she shall have a right to be
    12  discharged from the unit unless he or she committed  an  act  listed  in
    13  subparagraph  (ii) of paragraph (j) of this subdivision within the prior
    14  one hundred eighty days and he or she poses a significant and  unreason-
    15  able risk to the safety or security of incarcerated persons or staff. In
    16  any  such  case the decision not to discharge such person shall be imme-
    17  diately and automatically subjected to  an  independent  review  by  the
    18  commissioner and the commissioner of mental health or their designees. A
    19  person  may  remain in a residential rehabilitation unit beyond the time
    20  limits provided in this section if both commissioners or both  of  their
    21  designees  approve  this  decision.  In  extraordinary  circumstances, a
    22  person who has not committed an act listed in subparagraph (ii) of para-
    23  graph (j) of this subdivision within the prior one hundred eighty  days,
    24  may  remain  in a residential rehabilitation unit beyond the time limits
    25  provided in this section if both the commissioner and  the  commissioner
    26  of  mental  health  personally  determine  that such individual poses an
    27  extraordinary and unacceptable risk of imminent harm to  the  safety  or
    28  security of incarcerated persons or staff.
    29    (iii)  There  shall  be  a meaningful periodic review of the status of
    30  each incarcerated person in a residential rehabilitation unit  at  least
    31  every  sixty  days  to assess the person's progress and determine if the
    32  person should be discharged  from  the  unit.  Following  such  periodic
    33  review,  if  the  person  is  not  discharged from the unit, program and
    34  mental health staff shall specify in writing the reasons for the  deter-
    35  mination  and  the program, treatment, service, and/or corrective action
    36  required before discharge. The incarcerated person shall be given access
    37  to the programs, treatment and services  specified,  and  shall  have  a
    38  right to be discharged from the residential rehabilitation unit upon the
    39  successful fulfillment of such requirements.
    40    (iv)  When  an  incarcerated  person  is discharged from a residential
    41  rehabilitation unit, any remaining  time  to  serve  on  any  underlying
    42  disciplinary  sanction  shall  be  dismissed.  If an incarcerated person
    43  substantially completes his or her rehabilitation plan, he or she  shall
    44  have  any  associated loss of good time restored upon discharge from the
    45  unit.
    46    (m) All special housing unit, keeplock unit and residential  rehabili-
    47  tation unit staff and their supervisors shall undergo a minimum of thir-
    48  ty-seven  hours  and  thirty  minutes of training prior to assignment to
    49  such unit, and twenty-one hours of additional training  annually  there-
    50  after,  on  substantive  content developed in consultation with relevant
    51  experts, on topics including, but not limited to, the purpose and  goals
    52  of  the  non-punitive  therapeutic  environment,  trauma-informed  care,
    53  restorative justice, and dispute resolution methods. Prior to  presiding
    54  over any hearings, all hearing officers shall undergo a minimum of thir-
    55  ty-seven  hours  and thirty minutes of training, with one additional day
    56  of training annually thereafter, on relevant topics, including  but  not

        A. 3080--B                          9
 
     1  limited  to,  the  physical  and  psychological  effects  of  segregated
     2  confinement, procedural and due  process  rights  of  the  accused,  and
     3  restorative justice remedies.
     4    (n)  The department shall publish monthly reports on its website, with
     5  semi-annual and annual cumulative reports, of the total number of people
     6  who are in segregated confinement and the total number of people who are
     7  in residential rehabilitation units on the first day of each month.  The
     8  reports  shall provide a breakdown of the number of people in segregated
     9  confinement and in residential rehabilitation units by:  (i)  age;  (ii)
    10  race;  (iii)  gender;  (iv)  mental  health treatment level; (v) special
    11  health accommodations or needs;  (vi)  need  for  and  participation  in
    12  substance  abuse  programs;  (vii)  pregnancy  status; (viii) continuous
    13  length of stay in residential treatment units as well as length of  stay
    14  in  the  past sixty days; (ix) number of days in segregated confinement;
    15  (x) a list  of  all  incidents  resulting  in  sanctions  of  segregated
    16  confinement  by  facility  and  date  of  occurrence; (xi) the number of
    17  incarcerated persons in segregated confinement by  facility;  and  (xii)
    18  the  number  of incarcerated persons in residential rehabilitation units
    19  by facility.
    20    § 6. Section 138 of the correction law is  amended  by  adding  a  new
    21  subdivision 7 to read as follows:
    22    7.  De-escalation,  intervention, informational reports, and the with-
    23  drawal of incentives shall be the preferred  methods  of  responding  to
    24  misbehavior  unless  the  department  determines  that  non-disciplinary
    25  interventions have failed, or that non-disciplinary interventions  would
    26  not  succeed  and the misbehavior involved an act listed in subparagraph
    27  (ii) of paragraph (j) of subdivision six of section one hundred  thirty-
    28  seven  of  this article, in which case, as a last resort, the department
    29  shall have the authority to issue misbehavior reports, pursue  discipli-
    30  nary  charges,  or impose new or additional segregated confinement sanc-
    31  tions.
    32    § 7. Subdivision 1 of section 401 of the correction law, as amended by
    33  chapter 1 of the laws of 2008, is amended to read as follows:
    34    1.  The commissioner, in cooperation with the commissioner  of  mental
    35  health,  shall establish programs, including but not limited to residen-
    36  tial mental health treatment units, in such correctional  facilities  as
    37  he or she may deem appropriate for the treatment of mentally ill inmates
    38  confined in state correctional facilities who are in need of psychiatric
    39  services  but  who  do  not require hospitalization for the treatment of
    40  mental illness. Inmates with serious mental illness shall receive thera-
    41  py and programming in settings that are appropriate  to  their  clinical
    42  needs while maintaining the safety and security of the facility.
    43    The  conditions and services provided in the residential mental health
    44  treatment units shall be at least comparable to those in all residential
    45  rehabilitation units, and all residential mental health treatment  units
    46  shall  be in compliance with all provisions of paragraphs (h), (i), (j),
    47  and (k) of subdivision six of section one hundred thirty-seven  of  this
    48  chapter. Residential mental health treatment units that are either resi-
    49  dential mental health unit models or behavioral health unit models shall
    50  also  be  in compliance with all provisions of paragraph (l) of subdivi-
    51  sion six of section one hundred thirty-seven of this chapter.
    52    The residential mental health treatment units shall also  provide  the
    53  additional mental health treatment, services, and programming delineated
    54  in  this  section.  The  administration and operation of programs estab-
    55  lished pursuant to this section shall be the joint responsibility of the
    56  commissioner of mental health and  the  commissioner.  The  professional

        A. 3080--B                         10
 
     1  mental  health  care  personnel,  and  their  administrative and support
     2  staff, for such programs shall be employees  of  the  office  of  mental
     3  health. All other personnel shall be employees of the department.
     4    § 8. Subparagraph (i) of paragraph (a) of subdivision 2 of section 401
     5  of  the  correction  law,  as added by chapter 1 of the laws of 2008, is
     6  amended to read as follows:
     7    (i) In exceptional circumstances, a mental health  clinician,  or  the
     8  highest  ranking  facility  security  supervisor  in consultation with a
     9  mental health clinician who has interviewed the  inmate,  may  determine
    10  that  an  inmate's  access to out-of-cell therapeutic programming and/or
    11  mental health treatment in a residential mental  health  treatment  unit
    12  presents  an  unacceptable  risk to the safety of inmates or staff. Such
    13  determination shall be documented in writing and such  inmate  shall  be
    14  removed  to  a residential rehabilitation unit that is not a residential
    15  mental health treatment unit where alternative mental  health  treatment
    16  and/or  other  therapeutic programming, as determined by a mental health
    17  clinician, shall be provided.
    18    § 9. Subdivision 5 of section 401 of the correction law, as  added  by
    19  chapter 1 of the laws of 2008, is amended to read as follows:
    20    5.  (a)  An inmate in a residential mental health treatment unit shall
    21  not be sanctioned with segregated  confinement  for  misconduct  on  the
    22  unit, or removed from the unit and placed in segregated confinement or a
    23  residential  rehabilitation  unit,  except  in exceptional circumstances
    24  where such inmate's conduct poses a significant and unreasonable risk to
    25  the safety of inmates or staff, or to the security of the  facility  and
    26  he  or  she  has  been found to have committed an act or acts defined in
    27  subparagraph (ii) of paragraph (j) of subdivision  six  of  section  one
    28  hundred thirty-seven of this chapter.  Further, in the event that such a
    29  sanction  is  imposed,  an inmate shall not be required to begin serving
    30  such sanction until the reviews required by paragraph (b) of this subdi-
    31  vision have been completed;  provided,  however  that  in  extraordinary
    32  circumstances  where an inmate's conduct poses an immediate unacceptable
    33  threat to the safety of inmates or staff, or  to  the  security  of  the
    34  facility  an inmate may be immediately moved to [segregated confinement]
    35  a residential rehabilitation unit.  The determination that an  immediate
    36  transfer  to  [segregated confinement] a residential rehabilitation unit
    37  is necessary shall be made by  the  highest  ranking  facility  security
    38  supervisor in consultation with a mental health clinician.
    39    (b)  The joint case management committee shall review any disciplinary
    40  disposition imposing a sanction of segregated confinement  at  its  next
    41  scheduled  meeting.  Such  review  shall  take into account the inmate's
    42  mental condition and  safety  and  security  concerns.  The  joint  case
    43  management  committee  may  only thereafter recommend the removal of the
    44  inmate in exceptional circumstances where the inmate commits an  act  or
    45  acts defined in subparagraph (ii) of paragraph (j) of subdivision six of
    46  section one hundred thirty-seven of this chapter and poses a significant
    47  and  unreasonable risk to the safety of inmates or staff or to the secu-
    48  rity of the facility. In the event that the inmate was immediately moved
    49  to segregated confinement,  the  joint  case  management  committee  may
    50  recommend that the inmate continue to serve such sanction only in excep-
    51  tional  circumstances where the inmate commits an act or acts defined in
    52  subparagraph (ii) of paragraph (j) of subdivision  six  of  section  one
    53  hundred  thirty-seven of this chapter and poses a significant and unrea-
    54  sonable risk to the safety of inmates or staff or to the security of the
    55  facility. If a determination is  made  that  the  inmate  shall  not  be
    56  required  to  serve  all or any part of the segregated confinement sanc-

        A. 3080--B                         11
 
     1  tion, the joint case management committee may instead recommend  that  a
     2  less restrictive sanction should be imposed. The recommendations made by
     3  the  joint case management committee under this paragraph shall be docu-
     4  mented  in  writing and referred to the superintendent for review and if
     5  the superintendent disagrees, the matter shall be referred to the  joint
     6  central  office review committee for a final determination. The adminis-
     7  trative process described in this paragraph shall  be  completed  within
     8  fourteen  days.  If the result of such process is that an inmate who was
     9  immediately transferred to [segregated confinement] a residential  reha-
    10  bilitation  unit  should  be  removed from [segregated confinement] such
    11  unit, such removal shall occur as soon as practicable, and in  no  event
    12  longer  than seventy-two hours from the completion of the administrative
    13  process.
    14    § 10. Subdivision 6 of section 401 of the correction law,  as  amended
    15  by chapter 20 of the laws of 2016, is amended to read as follows:
    16    6.  The department shall ensure that the curriculum for new correction
    17  officers, and other new department staff  who  will  regularly  work  in
    18  programs providing mental health treatment for inmates, shall include at
    19  least  eight  hours  of  training about the types and symptoms of mental
    20  illnesses, the goals of  mental  health  treatment,  the  prevention  of
    21  suicide  and  training  in  how to effectively and safely manage inmates
    22  with mental illness. Such training may be  provided  by  the  office  of
    23  mental  health  or  the justice center for the protection of people with
    24  special needs. All department staff who are transferring into a residen-
    25  tial mental health treatment unit shall receive a minimum of eight addi-
    26  tional hours of such training, and eight hours  of  annual  training  as
    27  long as they work in such a unit. All security, program services, mental
    28  health and medical staff with direct inmate contact shall receive train-
    29  ing  each  year  regarding identification of, and care for, inmates with
    30  mental illnesses. The department shall provide  additional  training  on
    31  these  topics  on  an  ongoing basis as it deems appropriate.  All staff
    32  working in a residential mental health treatment unit shall also receive
    33  all training mandated in paragraph (m) of subdivision six of section one
    34  hundred thirty-seven of this chapter.
    35    § 11. Section 401-a of the correction law is amended by adding  a  new
    36  subdivision 4 to read as follows:
    37    4.  The  justice  center shall assess the department's compliance with
    38  the provisions of  sections  two,  one  hundred  thirty-seven,  and  one
    39  hundred  thirty-eight of this chapter relating to segregated confinement
    40  and residential rehabilitation units and shall issue a public report, no
    41  less than annually, with recommendations to the department and  legisla-
    42  ture,  regarding  all  aspects of segregated confinement and residential
    43  rehabilitation units in state correctional facilities including but  not
    44  limited  to  policies and practices concerning: (a) placement of persons
    45  in segregated confinement  and  residential  rehabilitation  units;  (b)
    46  special  populations;  (c) length of time spent in such units; (d) hear-
    47  ings and procedures; (e) programs, treatment and conditions of  confine-
    48  ment in such units; and (f) assessments and rehabilitation plans, proce-
    49  dures and discharge determinations.
    50    §  12.  Section  45  of  the correction law is amended by adding a new
    51  subdivision 18 to read as follows:
    52    18. Assess compliance of local correctional facilities with the  terms
    53  of  paragraphs  (g), (h), (i), (j), (k), (l), (m) and (n) of subdivision
    54  six of section one hundred thirty-seven of this chapter. The  commission
    55  shall issue a public report regarding all aspects of segregated confine-
    56  ment  and residential rehabilitation units at least annually with recom-

        A. 3080--B                         12
 
     1  mendations to local correctional facilities, the governor, the  legisla-
     2  ture, including but not limited to policies and practices regarding: (a)
     3  placement  of persons; (b) special populations; (c) length of time spent
     4  in  segregated confinement and residential treatment units; (d) hearings
     5  and procedures; (e) conditions, programs, services, care, and treatment;
     6  and (f) assessments, rehabilitation plans, and discharge procedures.
     7    § 13. Section 500-k of the correction law, as amended by chapter 2  of
     8  the laws of 2008, is amended to read as follows:
     9    § 500-k. Treatment of inmates. 1. Subdivisions five and six of section
    10  one  hundred thirty-seven of this chapter, except paragraphs (d) and (e)
    11  of subdivision six of such section, relating to the treatment of inmates
    12  in state correctional facilities are applicable to inmates  confined  in
    13  county jails; except that the report required by paragraph (f) of subdi-
    14  vision  six  of  such  section  shall  be made to a person designated to
    15  receive such report in the rules and regulations of the state commission
    16  of correction, or in any county or city where there is a  department  of
    17  correction, to the head of such department.
    18    2.  Notwithstanding any other section of law to the contrary, subdivi-
    19  sion thirty-three of section two of this chapter, and subparagraphs (i),
    20  (iv) and (v) of paragraph (i) and subparagraph (ii) of paragraph (l)  of
    21  subdivision  six  of  section  one  hundred thirty-seven of this chapter
    22  shall not apply to local correctional facilities with a  total  combined
    23  capacity of five hundred inmates or fewer.
    24    § 14. This act shall take effect one year after it shall have become a
    25  law.
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