Amendment of Certain Minimum Standards for City Correctional Facilities
Proposed Rules: Closed to Comments (View Public Comments Received:3)
Statementof Basisand Purpose
These proposed rule revisions would amend the Minimum Standards adopted by the Board of Correction (“the Board”) relating to correctional facilities, set forth in Chapter 1 of Title 40 of the Rules of the City of New York. Specifically, the revisions would:
• amend the Minimum Standards set forth in Chapter 1, Sections 1-09 (Visiting), 1-12 (Packages), 1-16 (Enhanced Supervision Housing), and 1-17 (Punitive Segregation), and
• make permanent a number of continuing variances that the Department of Correction (“the Department”) has repeatedly sought and received from the Board relating to Sections 1-02 (Classification of Prisoners) and 1-06 (Recreation).
These changes were requested by Commissioner Joseph Ponte in a petition for rulemaking submitted by the Department on May 26, 2015. In the petition, Commissioner Ponte suggested specific rule changes that would allow the Department to more effectively address an increase in violence in City jails, including an increase in slashings and stabbings, which the Department believes is linked to the proliferation of dangerous contraband, including small, hand-to-hand weapons, such as scalpels and razor blades. The Board accepted this petition at its July 14, 2015 meeting, but has since made a number of revisions to the text of the rule attached to the Department’s petition.
To accomplish the goal of reducing violence, the proposed rule would redefine the scope of physical contact that the Department is required to permit during contact visits and allow the Department to establish broader criteria for limitations on visitation rights. These changes would be consistent with the requirements established by New York State standards governing visitation and largely consistent with standards in place in other jurisdictions, but would additionally allow visitors and inmates to hold hands throughout a visit and would allow inmates to hold children under the age of 9 in their families throughout a visit. These proposed changes are intended to limit the opportunities to pass weapon and drug contraband during visits, while continuing to ensure that important contact between inmates and visitors may still occur.
The proposed changes also seek to improve the Department’s ability to identify visitors and inmates whose purpose is to engage in dangerous activity during a visit. Specifically, the proposed rule would permit the Department to consider, in evaluating the potential risk of a visit, factors such as criminal records, visit patterns and trends, and visitor and inmate contraband history. However, while the changes would permit the Department to consider these new factors when determining whether to limit visitation rights, the proposed rules establish strict limitations governing how these criteria are to be properly applied.
Similarly, the proposed changes are aimed at preventing the introduction of dangerous contraband through packages. Under the proposed changes, starting on January 1, 2016, the Department would be permitted to establish a list of pre-approved vendors from whom inmates may receive packages, provided that the Department provides all inmates with uniforms. Additionally, the Department would now have 3 business days, rather than 48 hours, to search packages. However, the proposed rule would preserve more accommodating standards for packages containing only court clothing.
In addition to the amendments aimed at reducing contraband, the proposed changes would allow exceptions to current rules related to the use of punitive segregation, which were adopted by the Board earlier this year. The Department has asked for amendments to Minimum Standard Section 1-17 (Punitive Segregation) to allow inmates infracted and sentenced for a serious assault on staff – i.e., those resulting in serious injury – to receive a higher maximum sentence in punitive segregation. This change is intended to serve as a deterrent to dangerous behavior.
The proposed changes to the punitive segregation section would also establish exceptions to the general rule that inmates who have served 30 consecutive days in punitive segregation must receive a required 7-day period out of punitive segregation. This exception could be applied to a limited number of exceptionally violent and dangerous inmates. The Department reports that, while most inmates released from punitive segregation have been returned to general population housing and remain there without incident, a small number of inmates have been involved in violent incidents that have endangered the safety of inmates and staff immediately following their release from punitive segregation. Under the proposed rule changes, if an inmate commits a violent act within the seven days after they are released from punitive segregation, the Department would have the flexibility, in limited circumstances, to remove that individual from a general population setting in order to maintain safety. Similarly, if an inmate commits such an infraction while in punitive segregation, the Department would have the flexibility, again in limited circumstances, to keep the inmate in punitive segregation beyond 30 consecutive days. In the proposed rule, the Board has included provisions that limit and narrowly define the circumstances in which the Department may waive an inmate’s 7-day break from punitive segregation, as well as require specific reporting requirements on the use of such waivers.
The proposed changes to the punitive segregation section would additionally clarify confusion surrounding the meaning of the 60-day limit on punitive segregation within any 6-month period and impose more specific reporting requirements when an inmate is held beyond the 60-day limit. Finally, the Department would be required to issue a report by November 1, 2016 detailing its efforts to reduce violence in punitive segregation housing without resorting to waivers of the time limitations on punitive segregation.
The proposed rule also modifies Minimum Standard Section 1-16 (Enhanced Supervision Housing (“ESH”)), which was adopted by the Board earlier this year. These changes would establish an exception to the ESH due process requirements for those who are removed from ESH and then returned to ESH within 45 days. This is intended to provide the Department with flexibility to determine appropriate housing placement and provide incentives for good behavior by allowing inmates to transition out of ESH using short trial periods in progressively less restrictive housing. In this proposed rule, the Board has additionally required that inmates receive notice containing the reasons for the return to ESH.
Finally, the proposed rule changes amend BOC Minimum Standards Sections 1-02 (Classification of Prisoners) and 1-06 (Recreation) to make permanent certain continuing variances that the Department has repeatedly sought and received from the Board.
Set forth below is a section-by-section description of the proposed rule amendments.
Section 1-02 (“Classification of Prisoners”)
This proposed revision would amend paragraph (1) of subdivision (b) to make permanent a long- standing variance that enables the Department to comingle city-sentenced inmates and detainees within the following housing areas: (1) adolescent cell housing areas, (2) housing areas designated for inmates ages 18 to 21, and (3) housing areas for pregnant inmates. It additionally replaces close custody housing with enhance supervision housing on the list of housing types in which such comingling is permissible, as the Department no longer uses close custody housing and recently implemented the new enhanced supervision housing unit.
Section 1-06 (“Recreation”)
The proposed revision would amend subdivision (f) to make permanent a long-standing variance that enables the Department to provide in-cell recreation to inmates confined for medical reasons in the contagious disease units and would require the Department to provide such inmates with various recreation materials in the most prevalent languages among the inmate population.
Section 1-09 (“Visiting”)
This proposed revision would amend subsection (a) to state explicitly the Board’s strong belief in the great value of visitation, and, specifically, contact visitation, and would note that the term “family” should be understood to reflect the diversity of familial structures for the purposes of
the Department’s implementation of visitation rules. The proposed revision would also amend subdivision (f) to redefine the scope of the type of physical contact that the Department must allow during contact visits by conforming the Board’s definition of “permitted contact” to the definition provided under New York State law. However, the revision would expand the State law definition of permissible contact to additionally provide that inmates must be permitted to hold children under the age of 9 in the inmates’ families throughout visits and hold visitors’ hands throughout visits.
This proposed revision would also amend subdivision (h) to conform the Board’s rules to New York State rules regarding how and when visitation may be limited. In addition, the change would establish broader criteria for limitations on visitation by allowing the Department to consider factors such as criminal record and relationship between the inmate and the visitor, but additionally provide strict limitations on how the Department is permitted to consider such factors in a new paragraph (2). Finally, the change would reform the procedures by which visitation limitations are imposed and by which inmates and visitors may appeal such limitations. Section 1-12 (“Packages”)
This proposed revision would amend subdivisions (a), (c) and (d) to allow the Department, beginning January 1, 2016, to set stricter limitations on the content and sources of inmate packages by allowing the Department to limit incoming packages to those sent by pre-approved vendors, provided that the Department provides all inmates with uniforms. However, the revision preserves more accommodating rules for packages containing only court clothing and sets limits on when the Department can confiscate items that were not sent by pre-approved vendors. The revision would additionally extend the amount of time in which the Department is permitted to deliver packages to inmates.
Section 1-16 (“Enhanced Supervision Housing”)
This proposed revision would amend subdivision (g) to provide the Department with increased flexibility to move inmates out of ESH to alternative placements for brief periods of time where appropriate. The proposed revision would also allow the Department to establish incentives for good behavior among ESH inmates, as it would provide the Department with the flexibility to remove inmates from ESH for a short period of time without being required to hold a new Due Process hearing in situations where the inmate must be returned to ESH, as long as the inmate is returned to ESH within 45 days. This new procedure will only be permitted where the Department reviews the inmate’s ESH placement under the normal periodic review procedure and timeline once the inmate is returned and requires that the Department provide the inmate with written notice of why the inmate was returned to ESH.
Section 1-17 (“Punitive Segregation”)
The proposed revision would amend paragraph (1) of subdivision (d) and add a new paragraph
(8) to subdivision (d) to allow the Department to sentence inmates who have committed a serious assault on staff to sixty days in punitive segregation.
The proposed revision would also amend paragraphs (1) and (2) and add a new paragraph (3) to allow the Department, in certain highly exceptional circumstances presenting safety and security concerns, to waive the requirement that inmates be immediately released from punitive segregation for seven days after they have been held in punitive segregation for thirty consecutive days. The change would further allow the Department to retain inmates in punitive segregation after thirty consecutive days if they were sentenced for a serious assault on staff. New paragraphs (4) and (5) impose a number of restrictions on when the Department may waive an inmate’s 7-day break from punitive segregation, including a narrow definition of the infractions for which such waivers may be issued and a limit on how many may be issued within a discrete time period. A new paragraph (7) would require that inmates held longer than thirtyconsecutive days in punitive segregation be provided with documented, daily mental health rounds.
Additionally, the proposed revision would amend former paragraph (3), which would be a new paragraph (6), to clarify the meaning of the provision that allows the Department to keep inmates in punitive segregation for longer than sixty cumulative days within a six month period. The revisions also impose more specific reporting requirements when the Department takes such action.
Finally, a new paragraph (2) would be added to subdivision (h) to require the Department to consider solutions to the persistent violence in punitive segregation that do not extend inmates’ punitive segregation confinement, and to issue a report by November 2016 on this subject. The change would further require the Board to consider whether the Department should continue to be allowed to extend punitive segregation confinement for violent inmates beyond thirty consecutive days, or sixty cumulative days within a six months period.