Amendment of Rules Governing Correctional Facilities
Proposed Rules: Closed to Comments (View Public Comments Received:4)
Statement of Basis and 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. The purpose of the proposed revisions is to address the dramatic increase in serious inmate violence in New York City jails. Although such violence has many root causes, the Department of Correction (“the Department”) has specifically identified as significant contributing factors gang-related activity and the ready availability of small, concealable blades. Further, the Department has determined that a relatively small number of inmates are disproportionately involved in these violent incidents. The proposed rule amendments described here seek to address these serious concerns and provide the Department with the tools it needs to reasonably control the activities of its most violent inmates. Concurrently, they seek to ensure that the rights of inmates are not unduly burdened and aim to promote humane conditions in New York City jails. To those ends, the proposed rule amendments provide for the creation of “enhanced supervision housing” (ESH) units, specify the Minimum Standards that would be applicable and inapplicable in such units, and provide for procedural safeguards to protect the rights of inmates assigned to ESH. They also place certain limitations on the use of punitive segregation in Department facilities.
The purpose of ESH would be to house inmates posing the most direct security threats, a category that the proposed rule amendments limit to: (1) inmates identified as leaders of, organizers of, or participants in gangs or substantially similar groups; (2) inmates who have committed slashings or stabbings or found in possession of scalpels or scalpel-like weapons; (3) inmates who have committed repeated assaults or have seriously injured another while in custody ; (4) inmates who have engaged in serious or persistent violence or have instigated or participated in a riot while in custody; and (5) inmates who otherwise presents a significant threat to the safety and security of the facility if housed in general population housing. ESH would not be permitted for adolescents -- that is, with respect to the Department’s facilities, those who are 16 and 17 years old – who constitute a particularly vulnerable part of the prison population. Assignment to ESH would activate procedures requiring notice in each case and, upon the inmate’s request, a hearing.
Due to the unique characteristics of the inmate population assigned to ESH, which would consist of some of the Department’s most dangerous inmates, the proposed rule revisions would further provide for an increased level of supervision and control in order to ensure the safety and security of inmates and staff. This would include various restrictions on time spent out of cells and in group settings, such as the law library and religious services, and would allow for increased monitoring of non-privileged correspondence. In order to prevent inmates assigned to ESH from obtaining concealed weapons, the proposed rules would place certain restrictions on the receipt of packages and on contact visits, which would be limited to an approved list of visitors. However, the proposed rules seek to balance such restrictions with the rights of inmates and are tailored to the purpose of protecting inmates and staff, rather than punishment for particular infractions.
At the same time, the Board believes that punitive segregation, which does address particular infractions committed by an inmate, should be limited in certain circumstances where it does not accomplish, or very imperfectly accomplishes, its deterrent purpose. In particular, punitive segregation presents a serious and unacceptable threat to the physical and mental health of inmates who are adolescents. Furthermore, punitive segregation fails to send a clear deterrent message when it is imposed on an inmate not for an infraction committed by an inmate in his or her present incarceration, but for an infraction committed by the same inmate in a previous incarceration, when the inmate was sentenced to punitive segregation but did not serve, or did not fully serve, that sentence. Punitive segregation for “time owed” from a previous incarceration is often perceived as fundamentally unfair, and therefore does not achieve its intended purpose. For these reasons, the proposed amendments would not allow the use of punitive segregation for inmates who are adolescents after January 1, 2015 or for inmates with “time owed” in punitive segregation from a previous sentence who are admitted to a Department facility after the creation of EHS. Inmates admitted before then to a department facility may have such “time owed” reduced or eliminated if the Department determines that this is warranted in view of the offense for which they were sentenced to punitive segregation during a previous sentence.
Set forth below is a section-by-section description of the proposed rule amendments.
Section 1-05 (“Involuntary lock-in”)
This proposed revision would amend paragraph (2) of subdivision (b) to provide that inmates confined to EHS may be locked in during the day for up to nine hours in any 24-hour period, in contrast with the two-hour limit applicable to other inmates. The proposed revision would allow for the creation of schedules such that no more than half of the inmates assigned to a given housing area would be permitted to enter the day room at any given time. The purpose of this revision is to enhance control of the inmate population assigned to ESH without unduly burdening the opportunity to engage in recreation or allowing for disproportionately extended periods of lock-in.
Section 1-06 (“Recreation”)
This proposed revision would amend subdivision (g) to allow for increased restriction on the recreation of inmates assigned to ESH. These changes would be the same as restrictions already in place for inmates housed in punitive segregation.
Section 1-07 (“Religion”)
This proposed revision would amend subdivision (h) to allow for inmates assigned to ESH to participate in religious services offered “with appropriate security either with each other or with other prisoners.” The proposed amendment is intended to aid the Department’s efforts to control and prevent gang communication in group settings and to minimize opportunities for negative inmate encounters.
Section 1-08 (“Access to Courts and Legal Services”)
This proposed revision would amend paragraph (6) of subdivision (f) to allow for limits on library hours for inmates housed in EHS, provided that an alternative method of access to legal materials is instituted to permit effective legal research. The proposed revision is intended to aid the Department’s efforts to control and prevent gang communications that may occur in the library setting and to minimize opportunities for negative inmate encounters.
Section 1-09 (“Visiting”)
This proposed revision would amend paragraph (1) of subdivision (e) and subdivision (f) in order to allow for greater control of visits with inmates assigned to ESH. The Department would be permitted to limit visits to those on an approved list of visitors in order to prevent the transfer of gang communications or contraband. Further, the proposed revision to subdivision (f) would allow for greater limitations on contact visits in particular.
Section 1-11 (“Correspondence”)
This proposed revision would amend subparagraphs (ii) and (iii) of paragraph (6) of subdivision (c), as well as clauses (ii) and (iii) of subparagraph (a) of paragraph (1) of subdivision (2) to allow for increased monitoring of non-privileged correspondence sent to inmates assigned to ESH.
Section 1-12 (“ESH Packages”)
This proposed revision would amend subdivision (a) to implement restrictions on the contents of incoming ESH packages in order to prevent the introduction into the facility of contraband from outside sources.
Section 1-13 (“Publications”)
This proposed revision would amend subdivision (a) to allow limitations to be placed on the sources from which inmates assigned to ESH may order publications. The proposed change is also aimed at decreasing the opportunity for contraband to be introduced into the facilities.
Section 1-16 (“Enhanced Supervision Housing”)
This proposed revision would add a new section outlining the limits on the assignment of inmates to ESH and requiring that the inmates be afforded an opportunity to respond when the Department makes such assignments. EHS assignments would be limited to: (1) inmates identified as leaders of, organizers of, or participants in gangs or substantially similar groups; (2) inmates who have committed slashings or stabbings or found in possession of scalpels or scalpel-like weapons; and (3) inmates who have committed repeated assaults or have seriously injured another while in custody; (4) inmates who have engaged in serious or persistent violence or have instigated or participated in a riot while in custody; and (5) inmates who otherwise presents a significant threat to the safety and security of the facility if housed in general population housing. ESH would not be permitted for adolescents. The proposed new section would additionally require that determinations of ESH placement include meaningful notice (consisting of the grounds relied on to assign each inmate to ESH) and informing the inmate of rights to submit a written response or request an in-person hearing to review the determination. Further, the proposed new section would provide that an in-person hearing be held if requested and that it consist of a review of the facts on which the Department relied in making the ESH assignment and a determination of whether such facts support that assignment.
Section 1-17 (“Limitations on the Use of Punitive Segregation”)
This proposed revision would add a new section which would prevent adolescents, defined as inmates who are 16 or 17 years old, from serving time in punitive segregation after January 1, 2015. Further, it would prevent an inmate who is admitted to a Department facility after the creation of EHS from serving time in punitive segregation for “time owed” in punitive segregation from a separate and previous incarceration. The Department would submit to the Board certain reports and timelines relating to changes in punitive segregation.