Amendment of Certain Minimum Standards for City Correctional Facilities

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Saturday, January 23, 2016
Download Copy of Adopted Rule (.pdf): 

 Statement of Basis and Purpose

These rule revisions 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:

  • amend the Minimum Standards set forth in Chapter 1, Sections 1-09 (Visiting), 1-12 (Packages), 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 the rule changes for the purpose of allowing the Department to more effectively address violence in City jails, including slashings and stabbings. The Department believes this violence is linked, in part, 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 rule changes initially suggested by the Department and removed a number of the rule changes initially suggested by the Department.

Visitation

New language has been added to state explicitly the Board’s strong belief in the great value of visitation, and, specifically, contact visitation. To accomplish the goal of reducing violence and stemming the flow of contraband, the rule changes redefine the scope of physical contact that the Department is required to permit during contact visits. These changes mirror the definition of “contact” under the New York State standards. However, the rules changes expand upon the State’s definition by making clear that visitors and inmates are permitted to hold hands throughout a visit and inmates are permitted to hold children ages 14 and younger in their families throughout a visit. The changes further note that the term “family” should be construed broadly to reflect the diversity of familial structures for the purposes of the Department’s implementation of visitation rules.  These 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 visitation section of the Minimum Standards has additionally been modified to make clear that the existing prohibition against limiting visitation rights on the basis of an inmate’s or a visitor’s gender includes gender identity, self-image, appearance, behavior and expression. This language closely mirrors similar provisions in New York City’s Human Rights Law.

Finally, the process for appealing visitation restrictions has been modified. The Board must still decide visitation appeals within 5 business days, but now may issue a single extension of 10 business days when there exists good cause to do so.

Packages

An additional change has been included to make it easier for the Department to prevent the introduction of dangerous contraband through packages. The change provides the Department with 72 hours rather than 48 hours, to search packages.

Punitive Segregation

In addition to the amendments aimed at reducing contraband, other changes allow the Department to sentence 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 than is allowed for other infractions. The changes provide that an inmate infracted for committing a serious assault on staff may be sentenced to up to 60 days in punitive segregation for that single infraction. When an inmate is serving such a sentence, the changes provide that the Department need not release the inmate from punitive segregation for 7 days after the inmate has served 30 consecutive days in punitive segregation, which is required for all other punitive segregation sentences. However, any sentences for serious assaults on staff that exceed 30 days must be approved by the Chief of Department or a designee. Additionally, the Chief of Department or a designee must complete a review 45 days after commencement of the sentence to determine whether the inmate could safely be placed in an available alternative housing unit for the remainder of the sentence.

The changes to the punitive segregation section additionally clarify the meaning of the 60-day limit on punitive segregation within any 6-month period and impose additional reporting requirements when an inmate is held beyond the 60-day limit. Finally, the revisions require the Department to provide the Board with a report detailing the Department’s efforts to reduce violence without resorting to increasing the time inmates spend in punitive segregation housing.

Classification and Recreation

Finally, the rule changes amend 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 rule amendments.

Section 1-02 (“Classification of Prisoners”)

This revision amends 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 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. Finally, a new paragraph is added to provide that where inmates are comingled in such housing areas, the Department is required to treat sentenced inmates as inmates awaiting trial or examination for all purposes other than housing.

Section 1-06 (“Recreation”)

This revision amends 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 requires the Department to provide such inmates with various recreation materials in the most prevalent languages among the inmate population.

Section 1-09 (“Visiting”)

This revision amends subdivision (a) to state explicitly the Board’s strong belief in the great value of visitation, and, specifically, contact visitation. The changes further 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 revisions 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 revisions additionally expand the State law definition of permissible contact to provide that inmates must be permitted to hold children ages 14 and younger in the inmates’ families throughout visits and hold visitors’ hands throughout visits.

A new paragraph is added to subdivision (h) to make clear that visitation restrictions must be narrowly tailored to the threat posed by the visitor or the inmate’s access to visitation.

Subdivision (h) is additionally amended to clarify certain aspects of the Minimum Standards that bar the use of certain characteristics as a basis to restrict visitation. Namely, the changes clarify that “gender” includes “gender identity, self-image, appearance, behavior or expression.”

Finally, the changes modify the procedures by which visitation limitations are imposed and by which inmates and visitors may appeal such limitations. The Board must still decide visitation appeals within 5 business days, but now may issue a single extension of 10 business days when there exists good cause to do so.

Section 1-12 (“Packages”)

The change provides that the Department must deliver packages to inmates within 72 hours, rather than 48 hours.

Section 1-17 (“Punitive Segregation”)

The revisions amend paragraphs (1) and (2) of subdivision (d) and add a new paragraph (4) to subdivision (d) to allow the Department to sentence inmates who have committed an assault on staff resulting in serious injury to up to 60 days in punitive segregation. The Department would not be required to provide those inmates with a 7-day break after 30 consecutive days in punitive segregation, as is required for all other punitive segregation sentences. The Chief of Department or a designee is required to approve sentences exceeding 30 days, with notification sent to the inmate, the Board, and the relevant Correctional Health Authority. Additionally, the Chief of Department or a designee is required to complete a review 45 days after commencement of the sentence to determine whether the inmate can safely be placed in an available alternative housing unit for the remainder of the sentence.

The revisions to subdivision (d) also amend paragraph (3) to clarify the meaning of the provision that allows the Department to keep inmates in punitive segregation for longer than 60 cumulative days within a 6 month period. As was the case before these rule revisions, a decision by the Department to hold an inmate in punitive segregation for more than 60 cumulative days within a 6-month period does not impact the requirement in paragraph (2) of subdivision (d) that the inmate be released from punitive segregation for 7 days after serving there for 30 consecutive days. The Department must still release an inmate from punitive segregation for 7 days after the inmate has served 30 consecutive days, regardless of whether the Department has issued a waiver of the 60-day limit for that inmate pursuant to paragraph (3).

The revisions to subdivision (d) also add a new paragraph (5) requiring that, when an inmate is held in punitive segregation for an extended period for reasons other than an assault on staff resulting in serious injury, the Chief of Department or a designee complete a review of the inmate’s time served on the forty-fifth (45th) day to determine whether the inmate can safely be placed in an alternative housing unit for the remainder of the sentence the inmate is serving. The revisions further impose additional reporting requirements when the Department takes such action.

The revisions to subdivision (d) also add a new paragraph (6), which expands mental health protections to require that daily mental health rounds be required for all inmates who have been held in punitive segregation for longer than 30 consecutive days. Additionally, starting in August 2016, the Department is required to offer inmates held in punitive segregation longer than 30 consecutive days, as well as those held more than 60 days within 6 months, cognitive behavioral therapy or equivalent therapeutic programming aimed at addressing the root causes of the behavioral issues that led to the inmates’ extended stays in punitive segregation.

Finally, a new report is required in subdivision (h). That report, due no later than June 1, 2016, requires the Department to analyze and recommend options for reducing persistent violence committed by inmates housed in or released from punitive segregation using means other than extending punitive segregation confinement. Additionally, new reporting requirements are added to a previous report related to the Department’s use of punitive segregation.