Text of PA SB 880 (2023)

PRINTER'S NO. 1042 THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL No. 880 Session of 2023 INTRODUCED BY KANE, MUTH, COLLETT, HAYWOOD, FONTANA, TARTAGLIONE, COSTA, CAPPELLETTI, KEARNEY AND SCHWANK, AUGUST 16, 2023 REFERRED TO JUDICIARY, AUGUST 16, 2023 AN ACT Amending Title 61 (Prisons and Parole) of the Pennsylvania Consolidated Statutes, providing for solitary confinement. The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Title 61 of the Pennsylvania Consolidated Statutes is amended by adding a chapter to read: CHAPTER 51 SOLITARY CONFINEMENT Sec. 5101. Definitions. 5102. Methods and procedures of solitary confinement. 5103. Members of vulnerable populations. 5104. Risk of harm in solitary confinement. 5105. Solitary confinement authorized. 5106. Use of solitary confinement pending investigation. 5107. Duties of secretary. 5108. Alternative disciplinary measures to solitary 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 confinement. 5109. Rehabilitation after release from solitary confinement. 5110. Independent investigator. 5111. Solitary confinement misconduct hearings. 5112. Additional relief. 5113. Regulations. 5114. Report. § 5101. Definitions. The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise: "Chief administrator." The warden, superintendent or other officer in charge of a correctional institution or facility. "Correctional institution or facility." A State correctional institution, county correctional institution, a facility that confines a juvenile under 42 Pa.C.S. Ch. 63 (relating to juvenile matters), an institution which detains inmates in accordance with Chapter 71 (relating to interstate compacts) or an intergovernmental service agreement or other contract with any Federal, state or county agency, including United States Immigration and Customs Enforcement. "Emergency confinement." The solitary confinement of an inmate in a correctional institution or facility when there is reasonable cause to believe that the confinement is necessary for reducing a substantial risk of imminent serious harm to the inmate or others as evidenced by recent conduct. "Member of a vulnerable population." Any of the following: (1) An inmate who is 21 years of age or younger. (2) An inmate who is 55 years of age or older. (3) An inmate who is pregnant or in the postpartum 20230SB0880PN1042 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 period. (4) An inmate who has recently suffered a miscarriage or terminated a pregnancy. (5) An inmate who is perceived to be lesbian, gay, bisexual, transgender or intersex. (6) An inmate with the mental health classification of C Code or D Code. (7) An inmate with intellectual or developmental disabilities. "Solitary confinement." The confinement of an inmate in a correctional institution or facility due to disciplinary, administrative, protective, investigative, medical or other classification, in a cell or similarly confined holding or living space, alone or with other inmates for approximately 20 hours or more per day, with severely restricted activity, movement and social interaction. § 5102. Methods and procedures of solitary confinement. (a) Conditions.--An inmate may not be placed in solitary confinement unless the following conditions are met: (1) There is reasonable cause to believe that the inmate would create a substantial risk of immediate serious harm to himself or herself or another, as evidenced by recent threats or conduct, and a less restrictive intervention would be insufficient to reduce the risk. T he correctional institution or facility shall bear the burden of establishing this standard by clear and convincing evidence. (2) The inmate is subject to a disciplinary sanction. (3) The inmate received a personal and comprehensive medical and mental health examination conducted by a clinician. In the case of an inmate detained at a county 20230SB0880PN1042 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 correctional institution or facility, a preliminary examination shall be conducted by a member of the medical staff within 12 hours of the inmate being placed in solitary confinement and a clinical examination shall be conducted within 48 hours of the inmate being placed in solitary confinement. (4) The decision to place an inmate in solitary confinement is made by the chief administrator. (b) Hearing.--An inmate shall only be held in solitary confinement in accordance with a hearing which provides timely, fair and meaningful opportunities for the inmate to contest the confinement. The hearing shall be conducted in accordance with the following: (1) The inmate shall receive the hearing within 72 hours of placement in solitary confinement and a review every 15 days after the hearing if the inmate remains in solitary confinement. (2) In the absence of exceptional circumstances, unavoidable delays or reasonable postponements, the inmate shall be permitted to appear at the hearing. (3) The inmate shall be represented by legal counsel at the hearing. (4) The hearing shall be conducted by an independent hearing officer. (5) The inmate shall be provided with a written statement of the reasons for the decision to place the inmate in solitary confinement at the hearing. (c) Prohibition.--An inmate may not be placed or retained in solitary confinement under the following circumstances: (1) If the chief administrator determines that the 20230SB0880PN1042 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 inmate no longer meets the standards for solitary confinement. (2) For no more than 15 consecutive days. (3) For no more than 20 days in a 60-day period. (d) Evaluation.--A clinician shall evaluate an inmate placed in solitary confinement on a daily basis, in a confidential setting outside of the cell whenever possible, to determine whether the inmate is a member of a vulnerable population. In the case of an inmate detained at a county correctional institution or facility, the inmate shall be evaluated by a member of the medical staff as frequently as necessary, but not less than once every seven days while the inmate is in solitary confinement. An inmate determined to be a member of a vulnerable population by a clinician shall be immediately removed from solitary confinement and moved to an appropriate placement. (e) Disciplinary sanctions.--A disciplinary sanction of solitary confinement which has been imposed on an inmate who is removed from solitary confinement shall be deemed to be satisfied. (f) Lockdown.--During a correctional institution or facility lockdown, an inmate may not be placed in solitary confinement for more than 15 consecutive days or for more than 20 days during any 60-day period. (g) Inmate treatment.-- (1) Cells or other holding or living space used for solitary confinement shall be properly ventilated, lit, temperature-controlled, clean and equipped with properly functioning sanitary fixtures. (2) A correctional institution or facility shall maximize the amount of time that an inmate held in solitary 20230SB0880PN1042 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 confinement spends outside of the cell by providing, as appropriate, access to recreation, education, clinically appropriate treatment therapies, skill-building activities and social interaction with staff and other inmates. (3) An inmate held in solitary confinement may not be denied access to food, water or any other basic necessity. (4) An inmate held in solitary confinement may not be denied access to appropriate medical care, including emergency medical care. (5) An inmate may not be directly released from solitary confinement to the public during the last 180 days of the inmate's term of incarceration, unless it is necessary for the safety of the inmate, staff, other inmates or the public. (6) A restraint chair, chemical agents or shackles may not be used on an inmate. (7) Lights in solitary confinement cells shall be operated on the same schedule as lights in other housing units at the correctional facility. In no case shall lights in a solitary confinement cell be on for 24 hours a day unless a physician or psychiatrist believes, in his or her professional written opinion, that this step is necessary to prevent suicide or self-harm. The physician's or psychiatrist's professional written opinion that confirms a risk of suicide or self-harm shall be placed and kept in the inmate's medical records. If the physician or psychiatrist believes that an inmate is at risk of suicide or self-harm, a dimmer shall be used in the solitary confinement cell to adjust the lights to protect an inmate's safety while promoting sleep and mental and physical wellness. § 5103. Members of vulnerable populations. 20230SB0880PN1042 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 (a) Prohibition.--An inmate who is a member of a vulnerable population may not be placed in solitary confinement. (b) Younger inmates.-- (1) An inmate who is a member of a vulnerable population because the inmate is 21 years of age or younger may not be subject to discipline for refusing treatment or medication or for self-harm or threats of self-harm. (2) An inmate who is a member of a vulnerable population because the inmate is 21 years of age or younger and who would otherwise be placed in solitary confinement shall be screened by a correctional institution or facility clinician or the appropriate screening service and, if found to meet the standards of civil commitment, shall be placed in a specialized unit, as designated by the secretary, or civilly committed to the least restrictive appropriate short-term care or psychiatric facility designated by the Department of Human Services. (c) Other inmates.--An inmate who is a member of a vulnerable population because the inmate is 55 years of age or older, pregnant, in the postpartum period or has recently suffered a miscarriage or terminated a pregnancy, who would otherwise be placed in isolated confinement, shall be placed in a specialized unit as designated by the secretary. (d) Applicability.--This subsection shall not apply to a county correctional institution or facility. § 5104. Risk of harm in solitary confinement. An inmate shall not be placed in solitary confinement with one or more inmates if there is reasonable cause to believe that there is a risk of harm or harassment, intimidation or extortion of other physical or emotional abuse. 20230SB0880PN1042 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 § 5105. Solitary confinement authorized. A correctional institution or facility may place an inmate in solitary confinement under the following circumstances: (1) The chief administrator determines that a correctional institution or facility lockdown is required to ensure the safety of inmates. The facility administrator shall document specific reasons for the lockdown if the lockdown lasts more than 24 hours and why less restrictive interventions are insufficient to accomplish the safety goals of the correctional institution or facility. Within six hours of a decision to extend a lockdown for more than 24 hours, the chief administrator shall provide the secretary with the reasons specified under this paragraph for publication on the publicly accessible Internet website of the department. Upon request, the chief administrator shall provide the reasons specified under this paragraph to the General Assembly. (2) The chief administrator determines, based on a personal examination by a physician or, in the case of a county correctional institution or facility, a decision to place an inmate in medical isolation shall be made by a member of the medical staff, that an inmate should be placed in emergency confinement and the emergency confinement is conducted in accordance with the following: (i) The inmate may not be held in emergency confinement for more than 24 hours. (ii) The inmate held in emergency confinement shall receive an initial medical and mental health evaluation within two hours and a personal and comprehensive medical and mental health evaluation within 24 hours. In the case of a county correctional institution or facility, a 20230SB0880PN1042 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 preliminary examination shall be conducted by a member of the medical staff within 12 hours of confinement and a comprehensive medical and mental health evaluation within 48 hours. Reports of these evaluations shall be provided to the chief administrator upon completion. (iii) A clinical review shall be conducted on the inmate at least every six hours and as clinically indicated. (iv) The inmate shall be placed in a mental health unit as designated by the secretary. (v) In the case of a county correctional institution or facility, a decision to place an inmate in solitary confinement shall be made by a member of the medical staff and be based on a personal examination and a clinical review shall be conducted within 48 hours of the inmate being placed in solitary confinement and then as clinically indicated. (3) The chief administrator determines that an inmate should be placed in protective custody and the inmate is placed in protective custody in accordance with the following: (i) Except as provided under subparagraph (ii), the inmate must provide informed, voluntary, written consent to be placed in protective custody and there is reasonable cause to believe that protective custody is necessary to prevent reasonably foreseeable harm. (ii) The inmate may be placed in involuntary protective custody only when there is clear and convincing evidence that confinement is necessary to prevent reasonably foreseeable harm and that a less 20230SB0880PN1042 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 restrictive intervention would not be sufficient to prevent the harm. (iii) In a safe manner, an inmate placed in protective custody shall receive comparable opportunities for activities, movement and social interaction as other inmates in the general population of the correctional institution or facility. (iv) An inmate subject to removal from protective custody shall be provided with a timely, fair and meaningful opportunity to contest the removal. (v) An inmate who is eligible to be placed or currently is in voluntary protective custody may opt out of that eligibility by providing an informed, voluntary written refusal. (vi) The chief administrator shall place an inmate in a less restrictive intervention, including transfer to the general population of another institution or to a special-purpose housing unit for inmates who face similar threats, before placing the inmate in protective custody unless the inmate poses an extraordinary security risk such that transferring the inmate would be insufficient to ensure the inmate's safety. (4) A member of a vulnerable population may not be placed in solitary confinement with one or more inmates, except with the inmate's informed, voluntary, written consent. § 5106. Use of solitary confinement pending investigation. (a) Authorized use.--An inmate may not be placed in solitary confinement pending investigation of a disciplinary violation unless any of the following occur: 20230SB0880PN1042 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 (1) The inmate's presence in the general population poses a danger to the inmate, staff, other inmates or the public. In making the determination, the chief administrator shall consider the seriousness of the alleged offense, including whether the offense involved violence or escape or posed a threat to institutional safety by encouraging other inmates to engage in misconduct. (2) The chief administrator has granted approval in an emergency situation. (b) Review.--An inmate's placement in solitary confinement pending investigation of a disciplinary violation shall be reviewed within 24 hours by a supervisory employee who was not involved in the initial placement decision. (c) Release.--An inmate who has been placed in solitary confinement pending investigation of a disciplinary offense shall be considered for release to the general population if the inmate demonstrates good behavior while confined. If the inmate is found guilty of the disciplinary violation, the inmate's good behavior shall be considered in determining the appropriate penalty. § 5107. Duties of secretary. The secretary shall have the following duties: (1) Developing policies and implementing procedures for the review of inmates placed in solitary confinement and promulgating regulations as specified under section 5113 (relating to regulations). (2) Initiating a review of each inmate placed in solitary confinement under the policies and procedures developed and implemented under paragraph (1). (3) Developing a plan for providing step-down and 20230SB0880PN1042 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 transitional units, programs and staffing patterns to accommodate inmates currently placed in solitary confinement, inmates who will be placed in solitary confinement and inmates who receive an intermediate sanction in lieu of being placed in isolated confinement. Staffing patterns for correctional and program staff shall be set at levels necessary to ensure the safety of staff and inmates in accordance with the provisions of this chapter. § 5108. Alternative disciplinary measures to solitary confinement. A correctional institution or facility shall implement alternative disciplinary measures to solitary confinement. The alternative disciplinary measures may include the following: (1) Limiting contact visits. (2) Restricting visitors to only the inmate's immediate family. (3) The loss of work opportunities. (4) Assigning additional unpaid work duties for no more than 14 days. (5) No more than 14 days of the loss of telephone, entertainment or yard time privileges. (6) No more than 14 days of the loss of commissary privileges. (7) Confining an inmate to the inmate's own cell in the general population area. (8) A reprimand or warning. § 5109. Rehabilitation after release from solitary confinement. An inmate released from solitary confinement shall be rehabilitated in accordance with the following: (1) The inmate shall be gradually acclimated into the 20230SB0880PN1042 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 general population by temporarily being transferred into a single cell. (2) The inmate shall receive weekly meetings with a licensed mental health professional and a certified peer specialist. (3) The inmate shall have access to classes and educational materials. (4) The inmate shall have access to familial and outside contact. § 5110. Independent investigator. (a) Independent investigator.--The department shall designate an independent investigator to monitor each correctional institution or facility to ensure compliance with the provisions of this chapter. The independent investigator shall have the following duties: (1) Conducting interviews with inmates in solitary confinement and reporting any abuse to the department. (2) Reviewing any documents regarding inmates necessary to determine the implementation of solitary confinement. (b) Use of information.--Information gathered under subsection (a) may be used in a misconduct hearing conducted under section 5111 (relating to solitary confinement misconduct hearings). § 5111. Solitary confinement misconduct hearings. (a) Hearing review board.--The department shall establish a hearing review board to conduct hearings on solitary confinement misconduct by correctional institutions or facilities. The hearing review board shall consist of the following: (1) A licensed psychologist or psychiatrist. (2) A licensed mental health professional with a 20230SB0880PN1042 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 counseling background. (3) A licensed social worker. (b) Guidelines.--A hearing on solitary confinement by a correctional institution or facility shall be initiated and governed by guidelines specified in regulations promulgated under section 5113 (relating to regulations). (c) Misconduct hearings.--A hearing on solitary confinement misconduct by a correctional institution or facility shall be administered in accordance with the following: (1) Unless prohibited by the hearing review board for cause shown, a witness may be called at the misconduct hearing by the inmate or correctional institution or facility. (2) An inmate may call on an inmate advocate or legal counsel to be present during the misconduct hearing. (3) The inmate and correctional institution or facility may present evidence, including video evidence, at the misconduct hearing. An inmate shall be given access to video evidence from the correctional institution or facility no later than 24 hours before the commencement of the misconduct hearing. (d) Relief.--If the hearing review board finds solitary confinement misconduct by the correctional institution or facility, the correctional institution or facility shall release the inmate from solitary confinement. § 5112. Additional relief. In addition to the relief provided by the hearing review board under section 5111 (relating to s olitary confinement misconduct hearings), an individual adversely affected by any manner of law, rule, regulation or other action promulgated or 20230SB0880PN1042 - 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 enforced by a correctional institution or facility as it relates to the use of isolated confinement in violation of this chapter may seek declarative and injunctive relief and the actual damages attributable to the violation in an appropriate court of jurisdiction. The court shall award reasonable expenses to an individual adversely affected if the action results in a final determination by a court in favor of the individual adversely affected. § 5113. Regulations. The secretary shall promulgate regulations necessary to administer the provisions of this chapter. The regulations shall include, but not be limited to, the following: (1) Reducing s eparation from other inmates. (2) Reducing the burden of transferring inmates to a different correctional institution or facility. (3) Establishing any nonisolated confinement sanction authorized by the department's regulations. (4) Easing restrictions on religious, mail and telephone privileges, visit contacts and outdoor and recreation access. A correctional institution or facility may not restrict basic necessities from an inmate in solitary confinement. (5) Requiring training of disciplinary staff and all staff working with inmates in solitary confinement. The training shall include the following: (i) Standards for solitary confinement, including that solitary confinement shall only be imposed when an inmate commits an offense involving violence, escapes or attempts to escape or poses a threat to institutional safety. (ii) The maximum amount of time that an inmate may 20230SB0880PN1042 - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 be in solitary confinement and the available less restrictive interventions. (iii) The identification of developmental disabilities, the symptoms of mental illness, including trauma disorders, and methods of safe responses to inmates in distress. (6) Requiring documentation of all decisions, procedures and reviews of inmates placed in solitary confinement. (7) Monitoring of compliance with the provisions of this chapter. (8) Fair and equitable guidelines for the administration of misconduct hearings under section 5111 (relating to solitary confinement misconduct hearings). § 5114. Report. The commission shall post quarterly reports on the department's publicly accessible Internet website on the use of solitary confinement, including all of the following: (1) The age, sex, gender identity, ethnicity and type of confinement status for each inmate. Identifiable information may not be included in the report. (2) The total number of inmates in solitary confinement. (3) The total number of incidences of emergency confinement, solitary confinement as a result of a lockdown, inmate self-harm or suicide and assault in solitary confinement units. Section 2. This act shall take effect in 60 days. 20230SB0880PN1042 - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26