June 29, 2018
To: Deborah Slack-Bean
New York State Commission of Correction
Alfred E. Smith Building
80 S. Swan Street, 12th Floor
Albany, NY 12210
Re: I.D. No. CMC-44-17-00012-RP
“[Incarcerated Person] Confinement and Deprivation”
Please accept the following as public comments pursuant to the State Administrative Procedure Act in response to the Notice of Proposed Rule Making as published in the New York State Register on May 30, 2018.
The undersigned organizations continue to oppose the proposed rule changes by the State Commission of Correction (SCOC) as woefully insufficient to end the torture of solitary confinement in New York. The SCOC has explicitly taken a purely law enforcement approach to the regulations. The minor proposed revisions to the regulations – while somewhat positive – fail to meaningfully address the concerns raised in the extensive comments submitted in response to the originally proposed rules. Moreover, the explanations given as to why the regulations could not place further limitations on the use of solitary are not convincing.
The undersigned reiterate the concerns and suggestions from previously submitted comments, and urge the SCOC to take the previous and current public comments seriously, to hold a public hearing or forum before adopting new rules, and to enact real, meaningful limitations on solitary confinement.
Solitary confinement is torture. It decreases institutional and community safety. It is inflicted disproportionately on Black and Latinx people. It is inflicted often for minor reasons. The regulations should follow the HALT Solitary Confinement Act (S04784-A/A03080-B), which passed the NY Assembly on June 12, 2018, ban solitary confinement beyond 15 days for all people, and require more humane and effective, program-based alternatives. In addition, the Governor and NYS Senate should pass the HALT Solitary Confinement proposed legislation to bring New York in line with other states and international standards.
The urgency for an end to the torture of solitary confinement, as well as other urgent policy changes related to the incarceration system, cannot be overstated. The minds and lives of thousands of New Yorkers are at stake.
THE FLAWED SCOC RESPONSE TO PUBLIC COMMENTS
The SCOC’s acknowledged approach in drafting the proposed rules – explicitly focused on law enforcement – has led the rules to be deeply flawed. In response to concerns about the SCOC’s failure to reach out to all stakeholders and requests to hold a public hearing, the SCOC claims in its “Assessment of Public Comment” that it had sufficient input into the regulations because each of the commissioners has law enforcement or corrections experience, and because generally, the SCOC can rely on the Medical Review Board. The SCOC also discussed its approach of holding meetings with local sheriffs and members of the state Sheriffs’ Association. The SCOC very clearly and explicitly only sought meaningful input from people with a law enforcement background. The SCOC has completely ignored the expertise that comes from people who have survived solitary or had family members inside and from psychiatrists and other professionals who have studied or done work on issues around solitary for years or decades, and instead relied on a set of one-sided law enforcement experiences.
In conjunction with this narrow law enforcement approach, the SCOC’s reasoning as to why it could not adopt duration limitations, limit administrators’ discretion, prohibit additional categories of people from being placed in solitary, or require congregate programming is deeply flawed. The SCOC claims that it could not adopt such changes because Section 137(6) of the Correction Law grants correctional officials authority to “keep any [incarcerated person] confined in a cell or room . . . for such period as may be necessary for maintenance of order or discipline.”
This reasoning does not comport with the SCOC’s proposed regulations themselves. The SCOC has recognized that the ability of a jail administrator to put someone in a cell or room does not prohibit the SCOC from generally regulating the nature of that separation or mandating how much time out of cell a person in such cell or room must be afforded per day. For example, the proposed rules generally require all people be afforded at least four hours out-of-cell per day and require that essential services not be denied as punishment.
If the SCOC can mandate four hours out-of-cell time, why can’t it mandate seven hours or more out of cell time? If the SCOC can generally require kids under 18 to have six hours out of cell daily, why can’t it require people with mental health needs to have six hours or more out of cell daily? Or why can’t the SCOC at least require that all people have at least six hours or more out of cell time each day after being separated for 15 days? Similarly, if the SCOC can prohibit jails from denying essential services like religious services for purposes of punishment, why can’t the SCOC prohibit jails from denying people access to essential programs? If the SCOC can limit the discretion of administrators to ignore the above out-of-cell time and other requirements if there is a (very broadly defined) threat to the safety, security, or good order of the facility, why can’t the SCOC impose a stricter criteria for when the regulations can be ignored, such as only when there is an extreme threat of immediate physical harm to a person? Jail administrators do not, and can never, have discretion to inflict torture on people, and the SCOC has the power to limit that practice.
In addition, the SCOC’s statement that it is impractical to require programming because some jails are very small further entrenches the view that any out-of-cell time under the new regulations can simply mean placing a person alone in another cage without any programs or human interaction. The SCOC could require different program opportunities for different sized jails, require programming for jails over a certain size, or require meaningful human interaction/programs commensurate with whatever is available at the jail for people who are not in solitary confinement. Mandating that people have some meaningful human engagement with others is not impractical as the SCOC asserts; it is essential to avoid people’s minds and lives being lost.
Taken together, in line with how the SCOC’s own proposed regulations comport with the Correction Law’s authorization to jail administrators to keep a person in a separate cell or room, the SCOC’s regulations could require that any such separate confinement must include at least seven hours out of cell per day, and congregate programming opportunities. At the very least, the SCOC regulations could require this expanded out-of-cell time and access to programming, while allowing for narrow exceptional circumstances as to when a jail administrator could limit them, just as the SCOC has done with its generally required four hours of programming.
Similarly, although the law grants administrators authority to have such separate confinement as long as necessary for maintenance of order or discipline, the SCOC regulations could help define what that means, both in terms of what “necessary” entails or what “maintenance of order or discipline” means. The SCOC regulations could define, for instance, such a “necessary” period to never exceed a total limit of 15 consecutive days in solitary for all people, particularly given the evidence indicating that longer periods in solitary are counterproductive to maintenance of order or discipline. The regulations could also define what rule violations constitute requisite circumstances for impeding maintenance of order or discipline and thereby restrict the criteria for how someone could get into solitary.
Moreover, Section 137(6)(b) of the Correction Law requires that in any separate confinement “adequate sanitary and other conditions required for the health of the [incarcerated person] shall be maintained.” Given the well-known devastating impacts on people’s health caused by solitary confinement, the SCOC regulations could define what “other conditions” are “required for the health” of incarcerated people. Specifically, given the vast evidence of detrimental health impacts of solitary, the SCOC regulations could include a requirement in line with Section 137(6)(b) that any separated confinement involve at least seven hours out of cell per day, and congregate program opportunities, and/or that such confinement never be for periods in excess of 15 consecutive days.
Furthermore, the SCOC’s statement that there is no need for the proposed rules to apply to persons in State prisons because it would not benefit them is just plain wrong. Currently, DOCCS policy requires people to spend 22 or 23 hours per day in solitary confinement while in disciplinary and administrative segregation. See Department of Corrections and Community Supervision Directive 4933. Too often, this results in practice in people actually remaining confined to their cells for 24 hours a day. By contrast, the proposed regulations would generally mandate at least four hours out of cell per day.
THE LIMITED PROPOSED REVISIONS TO THE PROPOSED REGULATIONS
Because of the SCOC’s failure to properly take into account, or adequately address, the public comments, the SCOC’s proposed revisions to its regulations are minimal and will continue to allow thousands of people to be held in solitary, for minor reasons or retaliation, for months, years, and decades. It is positive that the SCOC has recognized that people with mental or physical disabilities, people with serious mental health issues, and new mothers could suffer even more devastating harm from solitary and thus added these groups to the list of people who would require seven-day reviews when they are placed in solitary. It is also positive that those reviews require consultation with health professionals. At the same time, just adding these reviews is not enough. The SCOC should prohibit these groups of people from spending any time in solitary, or at the very least, the added groups should also receive the additional protections afforded to children and pregnant women under the proposed regulations, namely the two hours of daily out-of-cell recreation in addition to the additional generally mandated four hours out-of-cell time.
It is also somewhat positive that the SCOC recognized the value of placing some limitations on the length of time people spend in solitary and that proposed revisions added that people should be placed in solitary only for the “minimum amount of time necessary to maintain the safety, security, and good order of the facility.” However, this provision is so vague and broad that it fails to provide a meaningful limitation on jails’ use of solitary. The SCOC should provide specific time limits for how long a person can spend in solitary, and should use 15 days as that limit, in line with international standards, because longer periods of time amount to torture.
WHAT THE SCOC AND THE GOVERNOR AND LEGISLATURE NEED TO ADOPT
If the SCOC and the Governor are serious about limiting the use of solitary confinement in New York, the regulations should adopt the provisions of the HALT Solitary Confinement Act. Specifically, the regulations should place a maximum limit of 15 consecutive days in solitary or 20 days total in any 60- day period for all people, in line with the Mandela Rules and what Colorado has implemented. The regulations should require that any separation beyond 15 days must involve at least seven hours out-of-cell per day, with six hours for congregate rehabilitative/therapeutic programming. The regulations should ban even one day of solitary for people 21 and younger or 55 and older, people with mental health needs or physical disabilities, pregnant women and new mothers, or at least require seven hours out of cell daily for people in all of these categories. The regulations should also require enhanced procedural protections at proceedings that can result in solitary, and require jails to quarterly report details on the use of solitary and alternatives. Further, the regulations should require these changes to apply to all prisons, as well as to all jails, in New York State.
If the SCOC does not adopt all of the above points, particularly given the SCOC’s very narrow interpretation of what limitations it can place on solitary through its regulations, Governor Cuomo and the NY Senate must pass the HALT Solitary Confinement Act to end the torture of solitary and create more humane and effective alternatives in all prisons and jails. Even if the SCOC does amend these regulations to follow HALT, passage of HALT is still necessary to enshrine the regulations into law. As an initial step, Governor Cuomo should end this torture right away by implementing the provisions of HALT through executive and administrative action.
Moreover, the undersigned recognize that solitary confinement is just one piece of a broader racist and horrific system of incarceration in New York. The SCOC, the Governor, and the Legislature must also act, for instance, to end staff brutality and close abusive prisons and jails, promote parole justice and pre-trial justice, protect domestic violence survivors from predatory prosecutions and sentences, dramatically reduce draconian sentences, expand higher education and voting rights for people incarcerated, and much more. Now is the moment for bold progressive leadership in New York, and we urge the SCOC, Governor Cuomo, and NY Legislators to act.
Thank you for your consideration.
NY Campaign for Alternatives to Isolated Confinement (CAIC)
Action Corps NYC
Amnesty International Group 27 – Brooklyn
Anti-Racism Committee of Episcopal Diocese of New York
Association of Legal Aid Attorneys - UAW Local 2325
Black & Pink NYC
Books Through Bars (NYC)
Brooklyn Defenders Services
Community Service Society of New York
Correctional Association of New York
Decarcerate Tompkins County
Episcopal Diocese of New York
Episcopal Peace Fellowship – Western New York Chapter
Incarcerated Nation Corporation (INC)
Interfaith Impact of NYS
Jewish Voice for Peace - NYC
Jews for Racial and Economic Justice (JFREJ)
Jim Owles Liberal Democratic Club
John Brown Lives!
Judson Memorial Church
Justice and Unity for the Southern Tier (JUST)
Katal Center for Health, Equity, and Justice
Legal Action Center
The Legal Aid Society
Morningside Monthly Meeting of the Religious Society of Friends, Quakers
National Action Network NYC Chapter - Second Chance Committee
National Alliance on Mental Illness (NAMI) – New York State, Criminal Justice
NAMI Buffalo & Erie County
National Religious Campaign Against Torture (NRCAT)
New York Association of Psychiatric Rehabilitation Services, Inc. (NYAPRS)
New York Lawyers for the Public Interest
NYC Jails Action Coalition (JAC)
NYC Jericho Movement
NYC Radical Reference Collective
Prison Families Anonymous
The Reconstructonist Synagogue of the North Shore
Scientist Action and Advocacy Network (ScAAN)
Social Justice Committee, Unitarian Universalist Fellowship of Poughkeepsie
Social Justice Ministry of Christ Church Riverdale
Social Workers Against Solitary Confinement
Southern Tier Independence Center
Showing Up for Racial Justice (SURJ) – Buffalo
SURJ – North Country
T’ruah: The Rabbinic Call for Human Rights
United Voices of Cortland (UVC)
Urban Justice Center
Western New York CAIC Chapter
Western New York Peace Center
Women & Justice Project
cc: Governor Cuomo