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.
STATE OF NEW YORK
________________________________________________________________________
626
2023-2024 Regular Sessions
IN SENATE
January 5, 2023
___________
Introduced by Sens. HOYLMAN, SALAZAR -- 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 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-
22 sional background in public health. No more than three members of the
23 commission shall have a background in law enforcement, criminal prose-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00210-01-3
S. 626 2
1 cution, or employment within a corrections agency, and the members of
2 the commission with such backgrounds shall never be greater than the
3 number of members of the commission with backgrounds in indigent crimi-
4 nal defense services, prisoner's rights litigation, or public legal
5 services. The remaining members of the commission shall have expertise
6 in any other field deemed useful for the promotion of an efficient,
7 humane, and lawful correctional system. The [governor] members of the
8 commission shall designate one of the appointed members as chairman to
9 serve [as such] at [the] their pleasure [of the governor]. The members
10 shall devote full time to their duties and shall hold no other salaried
11 public position.
12 2. The members shall hold office for terms of five years; provided
13 that of the three members first appointed, one shall serve for a term of
14 two years, one shall serve for a term of three years and one shall serve
15 for a term of five years from January first next succeeding their
16 appointment. No member shall serve for more than ten years. Any member
17 of the commission may be removed by the governor for cause after an
18 opportunity to be heard in his or her defense.
19 3. Any member chosen to fill a vacancy created other than by expira-
20 tion of term shall be appointed for the unexpired term of the member
21 whom he or she is to succeed. Vacancies caused by expiration of term or
22 otherwise shall be filled in the same manner as original appointments;
23 provided, however, that if a position on the commission remains vacant
24 for any period longer than one hundred eighty days, the members of the
25 commission may appoint an individual to fill such vacancy whose appoint-
26 ment satisfies the requirements of paragraph (b) of subdivision one of
27 this section.
28 4. The appropriations available to pay for the expenses of the commis-
29 sion during each fiscal year shall not be less than two percentum of the
30 appropriations available to pay for the expenses of the department
31 during such fiscal year.
32 § 3. Subdivision 3 of section 45 of the correction law, as amended by
33 chapter 322 of the laws of 2021, is amended to read as follows:
34 3. Except in circumstances involving health, safety or alleged
35 violations of established standards of the commission, visit, and
36 inspect every correctional [facilities] facility in the state on an
37 annual basis consistent with a schedule determined by the chairman of
38 the commission[, taking into consideration available resources, workload
39 and staffing], and appraise the management of such correctional facili-
40 ties with specific attention to matters such as safety, security, health
41 of incarcerated individuals, sanitary conditions, rehabilitative
42 programs, disturbance and fire prevention and control preparedness, and
43 adherence to laws and regulations governing the rights of incarcerated
44 individuals. The commission shall not disclose its schedule for
45 inspections or provide advance notice to any correctional facility of a
46 planned inspection unless such notice is required to carry out the
47 duties of the commission.
48 § 4. Subdivision 4 of section 46 of the correction law, as amended by
49 chapter 322 of the laws of 2021, is amended and two new subdivisions 5
50 and 6 are added to read as follows:
51 4. In any case where any rule or regulation promulgated by the commis-
52 sion pursuant to subdivision six of section forty-five of this article
53 or the laws relating to the construction, management and affairs of any
54 correctional facility or the care, treatment and discipline of its
55 incarcerated individuals, are being or are about to be violated, the
56 commission shall immediately notify the person in charge or control of
S. 626 3
1 the facility of such violation, recommend remedial action, and direct
2 such person to comply with the rule, regulation or law, as the case may
3 be. The commission shall also immediately notify the governor, the
4 chair and members of the assembly standing committee on correction, and
5 the chair and members of the senate standing committee on crime victims,
6 crime, and correction, of the alleged or documented violation and the
7 remedial action that the commission recommends. Upon the failure of such
8 person to comply with the rule, regulation or law the commission [may]
9 shall promptly apply to the supreme court for an order directed to such
10 person requiring compliance with such rule, regulation or law; provided,
11 however, that if the commission decides to close a facility pursuant to
12 section forty-five of this article, the commission shall not be required
13 to apply for an order. Upon such application the court [may] shall issue
14 such order as may be just and a failure to comply with the order of the
15 court shall be a contempt of court and punishable as such.
16 5. (a) In any case where there is a reasonably foreseeable risk that
17 conditions at a correctional facility might violate the constitutional
18 rights of people incarcerated there, cause imminent harm to any incar-
19 cerated person, or cause the imminent death of any incarcerated person,
20 the commission shall be required to order the closure of such correc-
21 tional facility pursuant to subdivision eight of section forty-five of
22 this article. Such correctional facility shall remain closed permanently
23 or until the commission has determined that such correctional facility
24 can resume operations in compliance with all regulations promulgated by
25 the commission and without posing any reasonably foreseeable harm to any
26 person incarcerated there. The commission shall not need to apply for a
27 court order pursuant to subdivision four of this section before deciding
28 to close a correctional facility. Failure to take action pursuant to
29 this subdivision or subdivision four of this section shall constitute
30 neglect of a ministerial matter. For the purposes of this subdivision,
31 "ministerial matter" shall have the same meaning as such term is defined
32 in paragraph (d) of subdivision one of section seventy-three of the
33 public officers law.
34 (b) Upon a recommendation made by the governor or the attorney gener-
35 al, or upon a resolution passed in the assembly or senate, or upon the
36 request of a considerable number of people incarcerated in any correc-
37 tional facility or particular wing, annex, or housing unit thereof,
38 asking the commission to inspect any correctional facility and recommend
39 remedial actions or close a correctional facility pursuant to powers
40 granted in section forty-five of this article, the commission shall
41 discuss such matter at the next stated meeting to occur after ten busi-
42 ness days, provided that such meeting occurs within forty-five days of
43 such request. The commission shall inspect the correctional facility or
44 facilities in question, collect any relevant documents, and conduct any
45 interviews of incarcerated people, staff, medical providers, and super-
46 visors at such correctional facility prior to such meeting and make the
47 result of its inspection and analysis public online before its next
48 stated meeting. Such analysis shall, at a minimum, include a description
49 of the factors contained in subdivision three of section forty-five of
50 this article. At such meeting, the commission shall determine whether,
51 based on its inspection and analysis, the correctional facility lacks
52 compliance with any law or regulation promulgated by the commission, and
53 whether such non-compliance poses an imminent harm to any incarcerated
54 person in the custody of that correctional facility. At such stated
55 meeting the commission shall state on the record the reasoning underly-
56 ing its determination to take no action, recommend remedial action,
S. 626 4
1 apply to the supreme court for an order, or order the closure of a
2 facility.
3 6. (a) Twice per year, at intervals separated by approximately six
4 months, the commission shall publish a report containing the results of
5 its annual inspections of correctional facilities in a prominent place
6 on its website, and shall deliver a copy of such report to the governor,
7 the temporary president of the senate, the speaker of the assembly, and
8 the attorney general. Such reports shall contain, without limitation,
9 detailed information about any violations of regulations or applicable
10 laws at each correctional facility inspected, notable excerpts from
11 interviews with incarcerated people, staff, medical providers, and
12 supervisors at each facility, descriptions of deaths or serious injuries
13 that have occurred at any correctional facility that was inspected,
14 copies of recommendations or directives that have been issued by the
15 commission to any correctional facility during the period of time
16 covered by the report, and copies of any correctional facility's
17 response to such recommendations or directives.
18 (b) As soon as the commission completes an investigation of a death or
19 serious injury suffered by an incarcerated person in the custody of a
20 correctional facility, the commission shall publish on its website a
21 report containing the result of such investigation, including without
22 limitation the complete result of the commission's investigation of such
23 incident, true and correct copies of records that the commission has
24 received from such facility in connection with its investigation of such
25 incident, a determination as to whether conditions in the correctional
26 facility or the quality of medical care or supervision that the incar-
27 cerated person received were contributing factors or related to the
28 cause of death, and a list of regulations or applicable laws that may
29 have been violated in proximate relation to such incident. The commis-
30 sion shall also cause such report to be delivered to the next-of-kin or
31 authorized legal representative of such incarcerated person. Such
32 reports shall not be redacted except as otherwise required to protect
33 confidential medical records and behavioral health records in accord-
34 ance with state and federal laws, rules, and regulations.
35 (c) The commission may publish information contained in its reports,
36 data on deaths or serious injuries of incarcerated people at correction-
37 al facilities, and information on uncured violations of laws and regu-
38 lations at any correctional facility in a searchable database format on
39 its website if the commission determines that such a format will facili-
40 tate greater public access to such information.
41 (d) If, in the course of the commission's investigations or
42 inspections, the commission finds evidence of a pattern of malfeasance,
43 nonfeasance, abuse, or negligence on the part of staff or management at
44 any correctional facility, the commission shall immediately report such
45 evidence to the attorney general and the district attorney for the coun-
46 ty in which such correctional facility is located, and such evidence
47 shall be published within the reports issued by the commission pursuant
48 to paragraph (a) of this subdivision.
49 § 5. Section 43 of the correction law, as added by chapter 865 of the
50 laws of 1975, subdivisions 1 and 2 as amended by chapter 379 of the laws
51 of 1988, is amended to read as follows:
52 § 43. Correction medical review board; organization. 1. There shall be
53 within the commission a correction medical review board. It shall
54 consist of six persons to be appointed by the [governor] commissioner of
55 the department of health by and with the advice and consent of the
56 senate. In addition, the governor shall designate one of the full-time
S. 626 5
1 members other than the chairman of the commission and the chairman of
2 the council as chairman of the board to serve as such at the pleasure of
3 the governor. Of the appointed members of the board one shall be a
4 physician duly licensed to practice in this state; one shall be a physi-
5 cian duly licensed to practice in this state and a board certified
6 forensic pathologist; one shall be a physician duly licensed to practice
7 in this state and shall be a board certified forensic psychiatrist; one
8 shall be an attorney admitted to practice in this state; two shall be
9 members appointed at large.
10 2. The six appointed members of the board shall hold office for five
11 years; provided that of the two members first appointed, after December
12 thirty-first, nineteen hundred eighty-seven who are not appointed to
13 succeed any other member of the board, one shall be appointed for a term
14 of four years and one shall be appointed for a term of five years from
15 January first next succeeding their appointment. Any appointed member
16 of the board may be removed by the governor for cause after an opportu-
17 nity to be heard in his or her defense.
18 3. Any member chosen to fill a vacancy created other than by expira-
19 tion of term shall be appointed for the unexpired term of the member
20 whom he or she is to succeed. Vacancies caused by expiration of term or
21 otherwise shall be filled in the same manner as original appointments;
22 provided, however, that if a position on the board remains vacant for
23 any period longer than one hundred eighty days, the members of the board
24 may appoint an individual to fill such vacancy whose appointment satis-
25 fies the requirements of subdivision one of this section.
26 4. The members of the board shall [receive no compensation for their
27 services but each member shall be entitled to receive his actual and
28 necessary expenses incurred in the performance of his duties] devote
29 full-time to their duties and shall hold no other salaried public posi-
30 tion.
31 § 6. Section 47 of the correction law, as amended by chapter 322 of
32 the laws of 2021, is amended to read as follows:
33 § 47. Functions, powers and duties of the board. 1. The board shall
34 have the following functions, powers and duties:
35 (a) Investigate and review the cause and circumstances surrounding the
36 death or serious injury of any incarcerated individual of a correctional
37 facility.
38 (b) Visit and inspect any correctional facility wherein an incarcerat-
39 ed individual has died or suffered a serious injury.
40 (c) Cause the body of the deceased to undergo such examinations,
41 including an autopsy, as in the opinion of the board, are necessary to
42 determine the cause of death, irrespective of whether any such examina-
43 tion or autopsy shall have previously been performed.
44 (d) Upon review of the cause of death or serious injury and circum-
45 stances surrounding the death or serious injury of any incarcerated
46 individual, the board shall submit its report thereon to the commission
47 and to the governor, the chairman of the assembly committee on
48 correction and the chairman of the senate committee on crime victims,
49 crime and correction and, where appropriate, make recommendations to
50 prevent the recurrence of such deaths or serious injuries to the commis-
51 sion and the administrator of the appropriate correctional facility. The
52 report provided to the governor, the chairman of the assembly committee
53 on correction and the chairman of the senate committee on crime victims,
54 crime and correction shall not be redacted except as otherwise required
55 to protect confidential medical records and behavioral health records in
56 accordance with state and federal laws, rules, and regulations.
S. 626 6
1 (e) (i) Investigate and report to the commission on the condition of
2 systems for the delivery of medical care to incarcerated individuals of
3 correctional facilities and where appropriate recommend such changes as
4 it shall deem necessary and proper to improve the quality and availabil-
5 ity of such medical care.
6 (ii) The board shall be responsive to inquiries from the next of kin
7 and other person designated as a representative of any incarcerated
8 individual whose death or serious injury takes place during custody in a
9 state correctional facility regarding the circumstances surrounding the
10 death or serious injury of such incarcerated individual. Contact infor-
11 mation for the next of kin and designated representative shall be
12 provided by the department to the board from the emergency contact
13 information previously provided by the incarcerated individual to the
14 department.
15 2. Every administrator of a correctional facility shall immediately
16 report to the board the death or serious injury of an incarcerated indi-
17 vidual of any such facility in such manner and form as the board shall
18 prescribe, together with an autopsy report, or in cases of serious inju-
19 ry a physician's report.
20 § 7. This act shall take effect immediately.
