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Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

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 Chapters 1 and 2 of Title 40 of the Rules of the City of New York. Their purpose is to address the dramatic increase in serious inmate violence in New York City jails. Although such violence has many 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 rule amendments described here seek to address these serious concerns and provide the Department with the means 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 both rehabilitation and humane conditions in New York City jails. To those ends, the rule amendments provide for the creation of “enhanced supervision housing” (ESH) units, specify the Minimum Standards that are 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 is to house inmates posing the most direct security threats, a category that the rule limits to inmates who have: (1) been identified as leaders of gangs and have participated in dangerous gang-related activity; (2) organized or participated in gang-related assaults; (3) committed slashings or stabbings or who have committed repeated assaults, have seriously injured another, or have rioted or actively participated in inmate disturbances while in Department custody or otherwise incarcerated; (4) been found in possession of scalpels or weapons that pose a level of danger similar to or greater than that of a scalpels while in Department custody or otherwise incarcerated; (5) engaged in serious or persistent violence; or (6) while in Department custody or otherwise incarcerated, engaged in repeated activity or behavior presenting great danger, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility. Where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was incarcerated, the rule revisions require that such activity or actions have occurred within the preceding five years; but where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two years.

Due to the unique characteristics of the inmate population assigned to ESH, which consists of some of the Department’s most dangerous inmates, the rule revisions provide for an increased level of supervision and control in order to ensure the safety and security of inmates and staff. This may include various restrictions on time spent out of cells and in group settings, such as the law library, and allows for increased monitoring of non-privileged correspondence. However, the rule limits the restrictions placed on an inmate in ESH to those tailored to the specific security or safety threat posed by that individual inmate.

While the Board recognizes the great importance of these safety and security objectives, it further recognizes that ESH must pursue the parallel objective of promoting rehabilitation, good behavior, and the psychological and physical well-being of inmates. To that end, the rule amendments require that correction officers assigned to ESH complete forty hours of special training tailored to ESH’s unique conditions and inmate population. They further require the Department to provide ESH inmates with programming aimed at facilitating rehabilitation, addressing root causes of violence, and minimizing idleness.

At the same time, these amendments revise standards applicable to punitive segregation in order to improve the effectiveness and safety of such housing. The Board believes that punitive segregation, which addresses particular infractions committed by an inmate, should be limited in certain circumstances where it does not accomplish, or very imperfectly accomplishes, its deterrent purpose. Punitive segregation fails to send a clear deterrent message when it is imposed on an inmate not for an infraction committed by that inmate in his or her present incarceration, but for an infraction committed 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 rule amendments prohibit the use of punitive segregation for inmates with “time owed” in punitive segregation from previous sentences. In addition, no inmate may be sentenced to punitive segregation for more than thirty days for any single infraction, and no inmate may be held in punitive segregation longer than thirty consecutive days.   

For both punitive segregation and the new enhanced supervision housing unit, the board recognizes that such housing presents a serious and unacceptable threat to the physical and mental health of certain categories of inmates, namely inmates of certain ages and those who suffer from serious physical or serious mental disabilities or conditions. For these reasons, the rule amendments prohibit inmates under the age of 18 and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming, inmates aged 18 to 21 from being sentenced to punitive segregation or assigned to enhanced supervision housing. Additionally, inmates with serious mental or serious physical disabilities or conditions may not be placed in enhanced supervision housing or punitive segregation. Notably, section 8-102 of Title 8 of the Administrative Code of the City of New York defines disability broadly. The Board has declined to set forth a list of disabilities and conditions, mental or physical, the diagnosis of which would trigger an inmate’s automatic exclusion from punitive segregation and enhanced supervision housing. Rather, the Board vests in the health and mental health service the power to determine, on an individual basis, whether an inmate’s disability or condition requires exclusion.

Set forth below is a section-by-section description of the rule amendments.

Section 1-02 (“Classification of Prisoners”)

This revision amends subdivisions (b) and (d) and adds a new subdivision (c) in order to modify the categories of inmates who must be housed separately and apart from one another, creating separate categories for male and female inmates ages 18 through 21. The revision further provides that housing for inmates ages 18 through 21 must provide age-appropriate programming, and requires the Department to report on its efforts to develop such programming. The revision is intended to reduce violence by segregating developmentally distinct age groups, provide age-appropriate rehabilitative opportunities, and conform the Board’s Minimum Standards with the requirements of New York State law and the federal Prison Rape Elimination Act (PREA).

Section 1-05 (“Involuntary lock-in”)

This revision amends paragraph (2) of subdivision (b) to provide that inmates confined to ESH 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 revision would allow for the creation of schedules providing 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 1-08 (“Access to Courts and Legal Services”)

This revision amends paragraph (6) of subdivision (f) to allow for limits on library hours for inmates housed in ESH, provided that an alternative method of access to legal materials is instituted to permit effective legal research. The 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 revision amends subdivision (f) in order to allow greater control over visits with inmates assigned to ESH by providing for the limitation of contact visits, while additionally ensuring that such restrictions are only imposed when needed to address a specific safety or security concern.

Section 1-11 (“Correspondence”)

This revision amends 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 1-16 (“Enhanced Supervision Housing”)

This revision adds a new section authorizing and specifying the limits on the assignment of inmates to ESH and further sets forth the procedural rights of inmates recommended for ESH assignment. ESH assignments are limited to those inmates who have: (1) been identified as leaders of gangs and who have actively participated in the organization of dangerous gang-related activity; (2) organized or participated in gang-related assaults; (3) committed slashings or stabbings or who have committed repeated assaults, have seriously injured another while in Department custody or otherwise incarcerated, or have rioted or actively participated in inmate disturbances; (4) been found in possession of scalpels or weapons that pose a level of danger similar to or greater than that of scalpels while in Department custody or otherwise incarcerated; (5) inmates who have engaged in serious or persistent violence; or (6) while in Department custody or otherwise incarcerated, engaged in repeated activity or behavior presenting great danger, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility. Where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was incarcerated, such activity or actions must have occurred within the preceding five years; but where the Department is permitted to consider an inmate’s activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two years. However, placement in ESH is not permitted for inmates under the age of 18, inmates with serious mental or serious physical disabilities or conditions, and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming, inmates aged 18 to 21 . Restrictions placed on an inmate assigned to ESH must be limited to those required to address the specific safety and security threat posed by that inmate. In addition, officers assigned to ESH must be provided with special training, and a certain number of such assignments must be permanent. The new section also requires that determinations of ESH placement include meaningful notice, including a statement of the grounds relied on to assign each inmate to ESH and the restrictions that will apply to the inmate in ESH, and informing the inmate of the right to submit a written response. The Department is further required, within three days of each ESH placement, to hold a placement review hearing, conducted by a hearing officer who did not participate in the placement decision, to determine whether the placement is warranted. If it is decided, at any time other than initial placement in ESH, to limit an ESH inmate’s access to contact visits, a separate pre-deprivation hearing must be held. Each ESH placement must be reviewed every 45 days to determine whether it is still warranted. In addition, the Department is required, every 60 days, to provide the Board with specified information relating to the implementation of ESH.

Section 1-17 (“Limitations on the Use of Punitive Segregation”)

This revision adds a new section which, among other things, excludes from punitive segregation  inmates under the age of 18, inmates with serious mental or serious physical disabilities or conditions, and, as of January 1, 2016, and provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming,  inmates aged 18 to 21. An inmate excluded from punitive segregation for any of these reasons at the time of an infraction may not be placed in punitive segregation at a later date for the same infraction, even if the inmate’s age or health status have since changed. An inmate placed in punitive segregation must be afforded a hearing, upon notice, at which the Department has the burden of showing, by a preponderance of the evidence, that the inmate is guilty of the infraction which is the basis for placement in punitive segregation. This revision also establishes time limits on the placement of an inmate in punitive segregation and on cumulative placements of the same inmate in punitive segregation. Further, the revision prevents an inmate who is admitted to a Department facility from serving time in punitive segregation for “time owed” in punitive segregation from a separate and previous incarceration. In addition, the Department is required, every 60 days, to provide the Board with specified information relating to punitive segregation.

Section 2-08 (“Coordination”)

This revision amends paragraph (2) of subdivision (b) to make clear that, as in the case of ESH, medical staff may determine that an inmate shall not be placed in punitive segregation at any time before or during such placement.

The Board is authorized to adopt these rule revisions by sections 626(e) and 1043(a) of the New York City Charter.

Effective Date: 
Sat, 02/21/2015

Proposed Rules: Closed to Comments (View Public Comments Received:4)

Agency:
Comment By: 
Friday, December 19, 2014
Proposed Rules Content: 

 

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.

Subject: 

Public hearing on proposed rule which considers the establishment of a new form of inmate housing, known as enhanced supervision housing, for certain inmates in the custody of the Department of Correction.

Location: 
125 Worth St Third Floor
New York, NY 10007
Contact: 

Amanda Masters
AMasters@boc.nyc.gov
212-788-7860

Download Copy of Proposed Rule (.pdf):