What You Need to Know About the New Rules Governing New York City’s Jails

The New York City Board of Correction (BOC) is the oversight body tasked with ensuring Minimum Standards for conditions of confinement in New York City’s jails. On January 13th, the BOC approved a series of changes to the Minimum Standards. Much attention has been focused on the BOC’s conditional pledge to end the use of solitary confinement for people ages 21 and under by January 1st, 2016. However, the final rule contains much more, including both restrictions to and expansions of the use of isolated and segregated housing at Rikers Island. The following analysis includes all the details.

New Housing Cohorts: 18-to-21-Year-Olds
Previously, the New York City Department of Correction (DOC) housed people at Rikers by two age groups: 16-to-18 years of age and 19 years of age or older. The new rule changes establish three age groups: 16 and 17 years of age, 18-to-21 years of age, and 22 years of age or older. The rules specify that the DOC must implement this policy by October 15th, 2015. Additionally, the new rules require the DOC to submit a plan for the provision of “age-appropriate programming” to all 18-to-21-year-olds by August 1st, 2015. There is no deadline for the actual provision of programming.

Solitary Confinement Restrictions
Solitary confinement in this report refers to the DOC’s policy of “punitive segregation,” whereby individuals are confined to their cells for as many as over 23 hours per day.

Exclusions
The new rules prohibit the placement of people under the age of 18 and people with “serious mental or serious physical disabilities or conditions” in solitary confinement. The new rule also stipulates that 18-to-21-year-olds will be excluded from solitary confinement beginning on January 1st, 2016, “provided that sufficient resources are made available to the [DOC] for necessary staffing and implementation of necessary alternative programming.” The amount of funding that would constitute “sufficient resources” is not specified in the rule and there is no guarantee that such funds will be provided to the DOC.

Significantly, the new rules grant medical staff discretionary authority to exclude individuals from solitary confinement when doing so “would pose a serious threat to an inmate’s physical or mental health.”

Owed Time
The rule changes end the DOC’s longstanding policy of “owed time,” which refers to the practice by which the DOC would place people in solitary confinement on account of days in solitary that they had accrued at Rikers in the past. If an individual left Rikers years ago before serving the full number of solitary days to which he had been sentenced, the DOC could place that individual directly into solitary confinement upon arrival at Rikers, even if that person was not accused of a new infraction. Effective mid-February, this practice will be discontinued completely.

Time Limits
The rule changes set 30 days as the maximum amount of time in solitary confinement that can result from a single infraction and as the maximum number of consecutive days that a person can spend in solitary confinement. The rule changes also stipulate that after 30 consecutive days in solitary, a person must be allowed to spend at least seven days out of solitary confinement. Additionally, the new rules set 60 days as the maximum amount of time that a person can spend in solitary confinement within any six-month period. However, the rule changes authorize the DOC to override these time limits when a person engages “in persistent acts of violence, other than self-harm, such that placement in enhanced supervision housing…would endanger inmates or staff.” In such cases, the DOC Chief of Department must personally sign off on the override and notify both the Department of Health and Mental Hygiene (DOHMH) and the BOC. Prior to the rule changes, there was no maximum for cumulative days in solitary confinement and the maximum number of days per infraction was 90 (the DOC would often charge people with multiple infractions—sometimes stemming from the same incidents–resulting in as many as over 1,000 days of solitary confinement). The United Nations has stated that over 15 consecutive days of solitary confinement should be considered torture.

Additional Limits to the Use of Solitary Confinement
The rule changes require the DOC to allow people sent to solitary confinement on account of grade 2 infractions to spend at least seven hours out of their cells each day. Grade 2 infractions include offenses such as possessing less than $20 of currency and verbally abusing DOC staff. The rule changes forbid the DOC from placing people in solitary confinement on account of grade 3 infractions, which include offenses such as gambling and failing to display ID cards.

Hearings
The rule changes codify but to not modify existing DOC practices regarding solitary confinement hearings. The only people present at each hearing are the accused and a DOC employee called an “adjudication officer.” The new rules do not establish a right to legal representation in these hearings.

Staffing and Training
The rule changes require that all DOC officers assigned to solitary confinement units must undergo 40 hours of specialized training. The rules also specify that, “at least twenty-five (25) percent of correction staff assigned to punitive segregation housing shall be assigned to steady posts.”

Reporting to the BOC
The rule changes require the DOC to report to the BOC every 60 days regarding the number of people held in solitary confinement, the length of solitary confinement sentences, the types of infractions leading to solitary confinement, the status of the DOC’s efforts to implement the restrictions required by the rule changes, a plan and timeline for reducing the length of solitary confinement sentences and the amount of people held in solitary, data related to recreation and out-of-cell time, and “any other information the [DOC] or the [BOC] deems relevant.”

Enhanced Supervision Housing
Enhanced Supervision Housing (ESH) is a restrictive, segregated housing unit that will contain up to 250 beds. ESH has been the subject of heated debate. DOC Commissioner Joseph Ponte says that ESH is not a punitive housing unit, and the text of the rule changes lists rehabilitation among the primary objectives of ESH. However, many advocates and some BOC Members consider ESH to be punitive.

Lock-In Hours
The DOC may keep individuals held in ESH confined to their cells for up to 17 hours per day. In comparison, people housed in general population at Rikers Island are confined to their cells for up to 10 hours per day and people held in solitary confinement (“punitive segregation”) at Rikers typically spend over 23 hours per day in their cells.

The limit on lock-out hours in ESH may be difficult to monitor or enforce. Despite existing Minimum Standards guaranteeing at least one hour of out-of-cell recreation each day to individuals held in solitary confinement, a recent BOC investigation revealed that fewer than 10% of the people housed in the largest solitary confinement housing unit were able to access recreation. Additionally, correction officers lock in incarcerated people within their cells each time an alarm sounds. In some facilities on Rikers Island, it is not unusual for alarms to sound multiple times in a day. For these reasons and others, individuals held in ESH might be held in their cells for longer than 17 hours per day in practice.

Placement in ESH
In contrast to solitary confinement, which the DOC uses as punishment for specific infractions, ESH will house people whom the DOC determines are dangerous based on their past actions. The new rule establishes six criteria, any one of which can trigger placement in ESH: 1) gang leadership or “active involvement in the organization or perpetration of violent or dangerous gang-related activity;” 2) active involvement as an organizer or perpetrator of a gang-related assault; 3) slashing, stabbing, repeated assaults, rioting, actively participating in “inmate disturbances,” or seriously injuring another person; 4) possession of a scalpel “or a weapon that poses a level of danger similar to or greater than that of a scalpel;” 5) serious or persistent violence; 6) “repeated activity or behavior of a gravity and degree of danger similar to the acts described [above].”

A person accused of meeting any of the above criteria has a right to a hearing before he is placed in ESH, but the rules do not establish a right to legal representation at that hearing. Similar to solitary confinement hearings, the only people present at each hearing will be the accused person and a DOC employee called an “adjudication officer.” At the hearing, the DOC may consider any acts committed by the accused individual while incarcerated within five years prior to the hearing and any acts committed while not incarcerated within two years prior to the hearing.

There is no limit to how long the DOC can hold a person in ESH, but the rules do require the DOC to review placements in ESH every 45 days.

Additional Restrictions in ESH
The rule changes authorize the DOC to deny contact visits to individuals held in ESH and to read their mail without providing notice. In comparison, the DOC is required to provide notice when it wishes to read the mail of any person incarcerated at Rikers outside of ESH, including people held in solitary confinement. Similar to in solitary confinement, people held in ESH are prohibited from traveling to the law library and are instead restricted to conducting legal research via visits to their cells from law library representatives. The imposition of additional restrictions will be determined at the ESH placement hearings and reviewed every 45 days.

Exclusions
The new rule categorically excludes 16- and 17-year-olds and people diagnosed with “serious mental or serious physical disabilities or conditions” from ESH. The rule stipulates that 18-to-21-year-olds will be excluded from ESH (as well as from solitary confinement) beginning on January 1st, 2016, “provided that sufficient resources are made available to the [DOC] for necessary staffing and implementation of necessary alternative programming.”

Significantly, the rule changes grant medical staff discretionary authority to exclude individuals from ESH “when ESH assignment would pose a serious threat to an inmate’s physical or mental health.”

Programming
The new rule requires the DOC to provide “both voluntary and involuntary, as well as both in- and out-of-cell, programming aimed at facilitating rehabilitation, addressing root causes of violence, and minimizing idleness” in ESH by July 1st, 2015. No further details regarding programming are included in the rule changes.

Staffing and Training
The rule changes require that all DOC officers assigned to ESH must undergo 40 hours of specialized training. The rules also specify that, “at least twenty-five (25) percent of correction staff assigned to ESH shall be assigned to steady posts.”

Reporting to the BOC
The rule changes require the DOC to report to the BOC every 60 days regarding the number of people held in ESH, the frequency with which additional restrictions are applied, rates of violence, rates of uses of force, programming and mental health resources, staff training, the number of people released from ESH to general population, the number of people who successfully challenge ESH status in hearings, and “any other data the [DOC] or the [BOC] deems relevant.”