Text of MA S 1511 (2024)

1 of 1 SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023 SENATE . . . . . . . . . . . . . . No. 1511 The Commonwealth of Massachusetts _________________ PRESENTED BY: James B. Eldridge _________________ To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General Court assembled: The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill: An Act to provide criminal justice reform protections to all prisoners in segregated confinement. _______________ PETITION OF: NAME: DISTRICT/ADDRESS: James B. Eldridge Middlesex and Worcester Liz Miranda Second Suffolk Michael J. Barrett Third Middlesex 1/31/2023 Vanna Howard 17th Middlesex 1/31/2023 Lindsay N. Sabadosa 1st Hampshire 2/9/2023 1 of 15 SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023 SENATE . . . . . . . . . . . . . . No. 1511 By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 1511) of James B. Eldridge, Liz Miranda, Michael J. Barrett, Vanna Howard and others for legislation to provide criminal justice reform protections to all prisoners in segregated confinement. Public Safety and Homeland Security. [SIMILAR MATTER FILED IN PREVIOUS SESSION SEE SENATE, NO. 1578 OF 2021-2022.] The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act to provide criminal justice reform protections to all prisoners in segregated confinement. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Section 1 of chapter 127 of the General Laws, as appearing in the 2018 2 Official Edition, is hereby amended by inserting after the definition of “Victim” the following 6 3 definitions:- 4 “Segregated confinement”, a housing placement where a prisoner is separated from the 5 general population. The department shall only utilize the following types of segregated 6 confinement: (1) restrictive housing; (2) disciplinary restrictive housing; (3) secure adjustment 7 units; (4) secure treatment units; (5) mental health watch; (6) accountability program unit; and 8 (7) security watch. 2 of 15 9 “Secure adjustment unit”, a housing placement designed to provide access to cognitive 10 behavioral treatment, education, programs, structured recreation, leisure time activities and 11 mental health services for prisoners diverted from or released from restrictive housing. 12 “Health services unit”, a general population housing placement designed to deliver 13 healthcare services to prisoners. 14 “Mental health watch”, a housing placement intended to protect a prisoner from serious 15 self-harm. 16 “Security watch”, any 24-hour observation initiated through security threats or suspicion 17 of ingesting substances including drugs. 18 “General population”, any housing placement where a prisoner is not held in segregated 19 confinement. In no event shall any general population unit have conditions that are similar to or 20 more restrictive than segregated confinement. These conditions shall include a prisoner's access 21 to: out of cell time; the yard, gym and other recreational spaces; the law library; religious 22 services; canteen; personal property; visitation, including both the total available visitation time 23 and the opportunity for contact visits; telephones and video visits; opportunities to earn a wage 24 and opportunities to earn good time. All such access shall be maximized as much as possible. 25 SECTION 1A. Section 1 of chapter 127 of the General Laws, as appearing in the 2020 26 Official Edition, is hereby amended by striking out, in line 70, the figure “22” and inserting in 27 place thereof the following figure:- 21 3 of 15 28 SECTION 2. Said section 1 of said chapter 127, as so appearing, is hereby amended by 29 striking out, in lines 27 and 30, the words “restrictive housing” and inserting in place thereof the 30 following words:- segregated confinement 31 SECTION 3. Said section 1 of said chapter 127, as so appearing, is hereby amended by 32 striking out, in lines 31 and 32, the words “clause (iv) or (v) of” 33 SECTION 4. Said section 1 of said chapter 127, as so appearing, is hereby amended by 34 striking out the definition of “secure treatment unit” and inserting in place thereof the following 35 definition:- 36 “Secure treatment unit”, a housing placement of any security level that is designed to 37 provide an alternative to restrictive housing for prisoners diagnosed with serious mental illness 38 and which provides clinically appropriate mental health treatment, programming, out of cell 39 time, educational opportunities, programming and other services in accordance with clinical 40 standards adopted by the department of correction in consultation with the department of mental 41 health. 42 SECTION 5. Section 39 of said chapter 127, as so appearing, is hereby amended by 43 striking out, in line 10, the words “restrictive housing units” and inserting in place thereof the 44 following words:- segregated confinement units other than mental health watch 45 SECTION 6. Said section 39 of said chapter 127, as so appearing, is hereby amended by 46 inserting after the word “authorized” in line 14 the following words: commensurate with the 47 rights of general population prisoners 4 of 15 48 SECTION 7. Said section 39 of said chapter 127, as so appearing, is hereby amended by 49 striking numeral (v), in lines 19 and 20, and replacing it with the following words “(v) access to 50 a tablet and a radio or television, in accordance with the prisoner’s preference, if the confinement 51 exceeds 48 hours.” 52 SECTION 8. Said section 39 of said chapter 127, is hereby amended by striking numeral 53 (x) in subsection (b) and inserting the following two numerals in its place: (x) access to personal 54 property unless contraindicated by qualified clinical mental health providers; (xi) other rights and 55 privileges as may be established or recognized by the commissioner. 56 SECTION 9. Said section 39 of said chapter 127, as so appearing, is hereby amended by 57 inserting at the end of subsection (d) the following sentences: Mental health treatment provided 58 in segregated confinement shall be confidential and utilize best practices by professional 59 standards. Medication alone, without therapy, does not constitute sufficient treatment; provided, 60 however, that a prisoner may decline therapy without medication disruption if the prisoner does 61 not want to participate in therapy. A minimum of 50 minutes of therapy per week shall be 62 offered to every prisoner in segregated confinement by qualified clinical mental health providers. 63 SECTION 10. Said section 39 of said chapter 127, as so appearing, is hereby amended by 64 inserting after subsection (e) the following subsection:- (f) Prisoners in segregated confinement 65 shall be offered time out of cell indoors or outdoors, in accordance with the prisoner's preference, 66 at least once a day unless contraindicated by qualified clinical mental health providers. 67 SECTION 11. Subsection (b) of said section 39 of said chapter 127, as so appearing, is 68 hereby amended by inserting after the first sentence the following two sentences:- If canteen 69 privileges or disability accommodations are deemed inconsistent with the security of the unit, 5 of 15 70 such determination must be reviewed by the placement review examiners at each placement 71 review, at which time the placement review examiners must override the determination if there is 72 not substantial evidence to support it. The placement review examiners shall provide written 73 explanation of their determination and all evidence relied upon, and all such determinations are 74 final agency decisions. 75 SECTION 12. Said section 39 of said chapter 127, as so appearing, is hereby amended by 76 striking out, in lines 34 and 41, the words “restrictive housing” and inserting in place thereof the 77 following words:- segregated confinement 78 SECTION 13. Said section 39 of said chapter 127, as so appearing, is hereby amended by 79 striking out, in lines 36, 37, 38 and 39, the words “or restrictive housing is otherwise clinically 80 contraindicated based on clinical standards adopted by the department of correction and the 81 qualified mental health professional’s clinical judgment” and inserting in place thereof the 82 following words:- “. A prisoner with a serious mental illness or who is otherwise clinically 83 contraindicated for restrictive housing, disciplinary restrictive housing or secure adjustment 84 units, based on clinical standards adopted by the department of correction and the qualified 85 mental health professional’s clinical judgment, shall only be placed in secure treatment units, 86 mental health watch or general population units. Secure treatment units may be any level of 87 security deemed appropriate for the population. They shall meet minimum standards for mental 88 health treatment, programming and education, as established by the department’s director of 89 behavioral health in consultation with the department of mental health. They shall have 90 minimum out of cell time of no less than 5 hours daily. All secure treatment units must be co- 91 directed by one correctional staff person and 1 clinical staff person, with equal authority in the 92 unit. All clinical treatment and supervision of prisoners placed in secure treatment units shall be 6 of 15 93 provided by qualified clinical mental health providers. The mental health providers will make 94 the determination regarding readiness for the prisoner to be moved to a less restrictive unit.” 95 SECTION 14. Said section 39 of said chapter 127, as so appearing, is hereby amended by 96 striking out, in line 47, the words “restrictive housing” and inserting in place thereof the 97 following words:- segregated confinement other than a secure treatment unit or mental health 98 watch 99 SECTION 15. Section 39A of said chapter 127, as so appearing, is hereby amended by 100 striking out, in line 1 , the words “restrictive housing” and inserting in place thereof the 101 following words:- segregated confinement other than a secure treatment unit or mental health 102 watch 103 SECTION 16. Said section 39A of said chapter 127, as so appearing, is hereby amended 104 by inserting after the words “restrictive housing” in line 4 the following words:- , “disciplinary 105 restrictive housing or a secure adjustment unit” 106 SECTION 17. Said section 39A of said chapter 127, as so appearing, is hereby amended 107 by striking out, in lines 12, 17, 20, 22, 34, 35, 38 and 39, the words “restrictive housing” and 108 inserting in place thereof the following words:- segregated confinement 109 SECTION 18. Said section 39A of said chapter 127, as so appearing, is hereby amended 110 by striking out subsection (d) and inserting in place thereof the following subsection:- “(d) a 111 prisoner who is pregnant or who is in the first 8 weeks of the postpartum recovery period after 112 giving birth shall not be placed in segregated confinement.” 7 of 15 113 SECTION 19. Said section 39A of said chapter 127, as so appearing, is hereby amended 114 by striking out subsection (e) and inserting in place thereof the following subsection:- (e) Persons 115 with permanent physical or developmental disabilities shall not be placed in segregated 116 confinement. 117 SECTION 20. Said section 39A of said chapter 127, as so appearing, is hereby amended 118 by inserting after subsection (f) the following subsection:- (g) A prisoner 21 years of age or 119 younger or 55 years of age or older shall not be placed in segregated confinement. 120 SECTION 21. Section 39B of said chapter 127, as so appearing, is hereby amended by 121 striking out, in lines 1, 4, 17, 34 and 35, the words “restrictive housing” and inserting in place 122 thereof the following words:- segregated confinement 123 SECTION 22. Said section 39B of said chapter 127, as so appearing, is hereby amended 124 by inserting after the word “39A”, in line 4, the following words:- or subsection (a) of section 125 39I, 126 SECTION 23. Said section 39B of said chapter 127 is hereby amended by striking from 127 subsection (a) numerals (iv) and (v) and inserting in place thereof:- (iv) is being held for any 128 other reason, every 30 days. 129 SECTION 24. Said section 39B of said chapter 127, as so appearing, is hereby amended 130 by inserting after the words “restrictive housing” in lines 11 and 12 the following words:- , 131 disciplinary restrictive housing, a secure adjustment unit or a secure treatment unit following an 132 allegation or finding of a disciplinary breach 8 of 15 133 SECTION 25. Said section 39B of said chapter 127, as so appearing, is hereby amended 134 by striking out, in line 20, the word “or” and inserting in place thereof the following word:- and 135 SECTION 26. Said section 39B of said chapter 127, as so appearing, is hereby amended 136 by inserting after the word “writing” in line 20 the following words:- and be represented by an 137 advocate of the prisoner’s choosing including, but not limited to, a legislator, law student, 138 lawyer, paralegal or other legal representative 139 SECTION 27. Said section 39B of said chapter 127, as so appearing, is hereby amended 140 by striking out, in lines 22 and 23, the words “the evidence relied on and the reasons for the 141 placement decision” and inserting in place thereof the following words:- “(1) any negative 142 effects of segregated confinement on the prisoner and the extent to which such effects may be 143 impacting the prisoner’s behavior and perceived level of risk, (2) whether a reasonable 144 probability of safety for the prisoner and third parties could be achieved if the prisoner were 145 confined to general population or a less restrictive form of segregated confinement than the 146 prisoner has been assigned to, (3) the factual basis or bases for the placement decision, (4) a 147 written description of any statements made by the prisoner during the hearing and (5) attaching 148 all supporting records and all records submitted by the prisoner” 149 SECTION 28. Said section 39B of said chapter 127, as so appearing, is hereby amended 150 by striking out subsection (d). 151 SECTION 29. Said section 39B of said chapter 127, as so appearing, is hereby amended 152 by inserting after subsection (e) the following two subsections:- (f) There shall be a presumption 153 in favor of release to the general population at every placement review, and a prisoner may only 154 be retained in segregated confinement if there is clear and convincing evidence that the prisoner 9 of 15 155 poses an unacceptable risk in the general population as provided in subsection (a) of section 39, 156 documented in writing. If a prisoner is being held in segregated confinement awaiting a 157 disciplinary hearing or on any other awaiting action or investigation status, the prisoner shall be 158 reviewed every 3 days by clinical staff and they shall be returned to the general population once 159 clinical staff determine the prisoner no longer poses a threat of harm to themselves or others, in 160 no event greater than 15 days. Any time on any awaiting action status shall be credited towards 161 any subsequent disciplinary offense, and no disciplinary sanction shall be extended as the result 162 of such credit. (g) If a placement review causes a prisoner to be held in segregated confinement 163 for more than 90 days over a one-year period, the placement review shall constitute a final 164 agency decision. The prisoner may file a complaint challenging the prisoner’s placement in 165 segregated confinement in the superior court for the county in which the inmate is incarcerated 166 or otherwise being held or in Suffolk county in accordance with section 14 of chapter 30A. The 167 superior court shall determine if there is substantial evidence to support the determination of the 168 placement review. If there is substantial evidence to support the determination of the placement 169 review then the court shall: (1) uphold the placement in segregated confinement or (2) make 170 other orders the court deems consistent with justice. If there is not substantial evidence to support 171 the determination of the placement review then the court shall: (1) order that the prisoner shall be 172 housed in the general population; (2) order that the prisoner shall be housed in a less restrictive 173 form of segregated confinement than the prisoner is currently confined to; (3) order that the 174 prisoner shall be housed in the type of segregated confinement that the department assigned the 175 prisoner to; or (4) make other orders the court deems consistent with justice. The availability of 176 review under this section shall not be construed to limit any judicial remedies otherwise 177 available. 10 of 15 178 SECTION 30. Section 39C of said chapter 127, as so appearing, is hereby amended by 179 striking out, in line 4, the words “restrictive housing” and inserting in place thereof the following 180 words:- segregated confinement 181 SECTION 31. Section 39D of said chapter 127, as so appearing, is hereby amended by 182 striking out, in lines 2 and 3, the words “restrictive housing” and inserting in place thereof the 183 following words:- segregated confinement 184 SECTION 32. Said section 39D of said chapter 127, as so appearing, is hereby amended 185 by striking out subsection (b) and inserting in place thereof the following subsection:- 186 (b) The commissioner shall publish a report quarterly and provide directly to the 187 segregated confinement oversight committee and to the special commission to study the health 188 and safety of lesbian, gay, bisexual, transgender, queer and intersex prisoners in correctional 189 institutions, jails and houses of correction, as to each segregated confinement unit within each 190 state correctional facility, and every 6 months as to each segregated confinement unit within 191 each county correctional facility: (i) the number of prisoners as to whom a finding of serious 192 mental illness has been delineated by diagnosis and the number of such prisoners held for more 193 than 15 days; (ii) the number of prisoners who have committed suicide or committed non-lethal 194 acts of self-harm; (iii) the number of prisoners according to the reason for their segregated 195 confinement; (iv) a listing of prisoners with names redacted, including an anonymized 196 identification number that shall be consistent across reports, age, race, gender and ethnicity and, 197 if known, the voluntary self-identified sexual orientation, as defined in section 3 of chapter 198 151B, and gender identity, as defined in section 7 of chapter 4, of each prisoner subjected to 199 segregated confinement, whether the prisoner was pregnant during time spent in restrictive 11 of 15 200 housing, whether the prisoner has an open mental health case, the date of the prisoner’s 201 commitment to segregated confinement, the length of the prisoner’s disciplinary term, if 202 applicable and a summary of the reason for the prisoner’s commitment; (v) the number of 203 placement reviews conducted for each type of segregated confinement and the number of 204 prisoners released from each type of segregated confinement as a result of such placement 205 reviews; (vi) the length of original assignment to and total time served in segregated confinement 206 for disciplinary purposes for each prisoner released from said confinement as a result of a 207 placement review; (vii) the count of prisoners released to the community directly or within 30 208 days of release from segregated confinement; (viii) the known disabilities of every prisoner who 209 was placed in segregated confinement during the previous 3 months; (ix) the number of mental 210 health professionals who work directly with prisoners in segregated confinement; (x) the number 211 of transfers to outside hospitals directly from segregated confinement; (xi) such additional 212 information as the commissioner may determine; (xii) the number of prisoners subjected to each 213 type of segregated confinement; (xiii) the number of prisoners held in segregated confinement 214 for more than 15 days; (xiv) the number of prisoners 21 years of age or younger subjected to 215 each type of segregated confinement; (xv) the number of pregnant prisoners subjected to each 216 type of segregated confinement; (xvi) the racial and ethnic composition of prisoners subjected to 217 each type of segregated confinement; (xvii) the sexual orientation and gender identity 218 composition of prisoners subjected to each type of segregated confinement who have voluntarily 219 disclosed during Prison Rape Elimination Act screenings or voluntarily disclose and self-identify 220 at any other time during their incarceration their sexual orientation, as defined in section 3 of 221 chapter 151B or gender identity, as defined in section 7 of chapter 4; (xviii) the number of 222 prisoners subjected to multiple stays in each type of segregated confinement in a given reporting 12 of 15 223 period; (xix) the rate of recidivism for individuals that were subject to segregated confinement. 224 The information shall be published in a commonly available electronic, machine readable format. 225 SECTION 33. Said section 39D of said chapter 127, as so appearing, is hereby amended 226 by inserting the following subsection:- 227 (d) The commissioner with consultation from the administrators of county correctional 228 facilities, the department of public health, the department of youth services, the Fenway Institute 229 and input from other stakeholders shall develop policies and procedures for prisoners to 230 voluntarily disclose their sexual orientation or gender identity during initial intake to state and 231 county correctional facilities and upon placement in segregated confinement. The collection of 232 sexual orientation or gender identity information voluntarily provided by prisoners placed in or 233 currently held in segregated confinement must be collected by members of the special 234 commission on the health and safety of lesbian, gay, bisexual, transgender, queer and intersex 235 prisoners. 236 SECTION 34. Section 39E of said chapter 127, as so appearing, is hereby amended by 237 striking out, in line 2, the words “restrictive housing” and inserting in place thereof the following 238 words:- segregated confinement 239 SECTION 35. Section 39F of said chapter 127, as so appearing, is hereby amended by 240 striking out, in lines 3 and 8, the words “restrictive housing” and inserting in place thereof the 241 following words:- segregated confinement other than mental health watch 242 SECTION 36. Said section 39F of said chapter 127, as so appearing, is hereby amended 243 by striking out, in line 4, the words “restrictive housing” and inserting in place thereof the 244 following words:- segregated confinement 13 of 15 245 SECTION 37. Section 39G of said chapter 127, as so appearing, is hereby amended by 246 striking out, in lines 1, 26, 27, 36, 40, 41, 42, 43, 44, 45 and 47, the words “restrictive housing” 247 and inserting in place thereof the following words:- segregated confinement 248 SECTION 38. Said section 39G of said chapter 127, as so appearing, is hereby amended 249 by striking out, in line 6, the word “9” and inserting in place thereof the following word:- 10 250 SECTION 39. Said section 39G of said chapter 127, as so appearing, is hereby amended 251 by inserting after the word “designee”, in line 18, the following words:- , 1 of whom shall be an 252 individual who has personally experienced segregated confinement 253 SECTION 40. Said section 39G of said chapter 127, as so appearing, is hereby amended 254 by striking out, in line 29, the word “The” and inserting in place thereof the following words:- 255 All members of the 256 SECTION 41. Said section 39G of said chapter 127, as so appearing, is hereby amended 257 by inserting after the word “institutions” in lines 29 and 30, the following words:- , including for 258 surprise inspections, 259 SECTION 42. Subsection (c) of said section 39G of said chapter 127, as so appearing, is 260 hereby amended by inserting after the first sentence the following four sentences:- No 261 restrictions shall be placed on the ability of members of the committee to speak with the public 262 or the press about public aspects of the committee’s work. The committee may ask the 263 department and sheriff’s departments to develop new data and information relating to the use of 264 segregated confinement. The committee shall be entitled to review nonpublic information and 265 records, including, but not limited to, personnel records and prisoner records. The committee 14 of 15 266 shall be entitled to review and obtain copies of all public information and records, including all 267 public information that is segregable from non-public information and records. 268 SECTION 43. Said chapter 127, as so appearing, is hereby amended by inserting after 269 section 39H the following section:- Section 39I. (a) A prisoner may be placed on mental health 270 watch only if it is determined by a qualified mental health professional’s clinical judgment that 271 the prisoner requires observation to protect the prisoner from a risk of serious self-harm. 272 (b) A prisoner who has been placed on mental health watch for more than 72 hours and 273 continues to require observation to protect the prisoner from a risk of serious self-harm, as 274 determined by a qualified mental health professional’s clinical judgment, shall receive enhanced 275 clinical care at a specialized hospital. 276 (c) All prisoners who have been placed on mental health watch shall be fully clothed, 277 limited only by patient safety considerations. Clothing shall be substantially similar to that 278 which is worn in general population, and any limitations to clothing shall be determined only by 279 a qualified clinical mental health professional. 280 (d) All menstruating prisoners shall be provided with appropriate personal hygiene 281 supplies throughout the duration of their menstrual cycle. 282 (e) All prisoners who have been placed on mental health watch shall be provided a 283 minimum of 2 blankets of the same or of substantially similar quality to blankets provided in 284 general population. 15 of 15 285 (f) All prisoners who have been placed on mental health watch shall be offered time out 286 of cell indoors or outdoors, in accordance with the prisoner's preference, at least once daily 287 unless contraindicated by qualified clinical mental health providers. 288 SECTION 44. Chapter 127 of the General Laws is hereby amended by inserting after 289 section 48B the following section:- 290 Section 48C: The commissioner and administrators of state prisons and county facilities 291 shall maximize out of cell time and opportunities for prisoner participation in education, training, 292 employment and all other programming including programming related to rehabilitation, health 293 care and substance use. All prisoners shall have the opportunity to access at least 1 hour of 294 programming daily at least 5 days per week. With the exception of restrictive housing and 295 security or operational emergencies, no prisoner shall be locked into a cell for more than 16 296 hours daily. 297 SECTION 45: Section 48 of Chapter 127 is hereby amended by adding after the first 298 sentence of the second paragraph the following sentence:- Every state and county correctional 299 facility must have at least one general high school equivalency class available and shall ensure 300 access to higher education.