NYCDS submits comments on new solitary confinement regulations
October 25, 2019
Dear Acting Deputy Commissioner Sheehan and Senior Attorney Christian:
New York County Defender Services (NYCDS) strongly opposes recently released New York State Department of Corrections and Community Supervision (DOCCS) regulations regarding solitary confinement in New York State prisons, and urges legislators to instead pass the HALT Solitary Confinement Act to ensure humane detention conditions and to improve re-entry outcomes for incarcerated people. NYCDS represents thousands of indigent clients each year. We appreciate the lasting damage that can be caused by even extremely brief periods of solitary confinement. In September alone, eleven of our clients spent a combined 2,784 hours in solitary confinement – and that counts only those in New York City Department of Correction (DOC) custody.
NYCDS opposes the proposed regulations because they will not end the torture of solitary confinement. The minor improvements proposed do not even go into effect for many years while significantly preserving the continued use of isolated confinement. The regulations fail to recognize the severe harm isolated confinement inflicts on people, particularly vulnerable populations like adolescents, people with mental illness or intellectual disabilities, and pregnant and parenting women. The protections outlined for these groups in the proposed regulations are regrettably wholly inadequate. We join with our colleagues from the Campaign to Abolish Isolated Confinement and the Raise the Age Coalition, including Children’s Defense Fund, in their comments on the proposed regulations.
Instead, we urge the legislature to pass and the Governor to sign the HALT solitary confinement bill, A.2500 (Aubry)/S.1623 (Sepulveda). This law that would bring New York State’s treatment of incarcerated people in line with international human rights concepts that acknowledge the dignity of all incarcerated people and the vulnerability of certain populations. The newly announced DOCCS regulations fail to adequately address these fundamental principles.
I. Specialized Expertise in Jails and Prisons
NYCDS possesses specialized expertise in jail and prison conditions thanks to decades of in-depth representation of incarcerated clients. Our organization includes multiple units dedicated to improving conditions of confinement and gathering data on client experiences in DOC and DOCCS custody. Our Corrections Specialists unit serves clients to limit pre-trial detention by assisting with bail and sentencing issues, along with careful tracking of in-custody incidents and human rights violations. Corrections Specialists recently launched a new initiative on solitary confinement to monitor all clients placed in punitive segregation and conduct interviews with each of these clients regarding their time in solitary. Additionally, our re-entry unit is committed to helping clients reintegrate into their communities following release from confinement. The re-entry unit has observed that many of our clients’ harrowing experiences in solitary confinement have yielded persistent detrimental effects on their mental health, thereby representing a major obstacle to successful societal reentry.
As a result, NYCDS as an organization has accumulated a wealth of knowledge on the protocol, execution, and impact of solitary confinement. Put very simply: the practice is cruel, ineffective, and harmful to both incarcerated people and the communities they ultimately rejoin. When put into solitary confinement, incarcerated people are abruptly moved from their housing areas, forced to leave many or all personal items behind, and put into a cell that they may not leave for days or weeks on end, depending on security designations. This subhuman treatment reinforces notions of shame, isolation, and worthlessness in incarcerated people, and the internalization of these lessons decreases the likelihood of later successful reentry. Many of our clients emerge from solitary confinement with an increased need for mental health support and resources. This trauma can limit an incarcerated person’s potential for independence after release, thereby jeopardizing all rehabilitation efforts.
II. DOC context
Within DOC custody, punishment by solitary confinement is often imposed with little concern for existing regulations. Rules and guidelines surrounding solitary confinement in DOC directives describe a system far different from the punitive process actually encountered by our clients on a daily basis. Regardless of what DOC ultimately establishes regarding its rules, without a mechanism for impartial enforcement or auditing, abuse of these rules will remain commonplace and difficult to remedy.
Alarmingly, incarcerated people subjected to solitary confinement are rarely extended the right to due process. Though individuals are theoretically guaranteed a hearing and documentation explaining the reasoning for their punishment, a majority of our clients placed in solitary are never provided with either, and can spend days or weeks in isolation wondering why they ended up there.
Other client rights are also often violated. Many clients in solitary report that they are not brought to doctors’ appointments, or are not distributed prescribed medications. Those who suffer from conditions such as depression, anxiety, or paranoia often find that their symptoms worsen while in solitary, yet few are provided with assistance from mental health staff when requested. Those who are able to speak with therapists are often limited to conversations lasting just a few minutes, often conducted through the cell door. Counsel visits and personal visits may be arbitrarily cancelled, again with no explanation. More minor incidents of neglect also demonstrate how DOC systematically dodges its own rules. One client reported that the guaranteed “reading material” distributed each day in his housing area consisted of one English newspaper and one Spanish newspaper, which were expected to be circulated to all 30 incarcerated people in the housing wing. Our client never received a newspaper, and had no books or radio in his cell, leaving him with no way to occupy himself for days on end.
Another recent incident sheds light on the absence of oversight. One of our young adult clients, aged 21, was placed in solitary confinement in spite of a 2015 ruling banning solitary confinement for individuals under 22. Our underage client was held in solitary for 12 days, in spite of our consistent intervention, and was only removed once an advocacy group became involved. The overarching theme of DOC’s negligence regarding solitary confinement, as demonstrated through issues ranging from minor to serious, raises significant cause for concern regarding the capacity of DOCCS to enforce its own newly proposed regulations.
Solitary confinement poses substantial added risks in the state prison environment. In these facilities, incarcerated people have been sentenced on closed cases. They generally have far less contact with an attorney and receive fewer visitors because they are often transferred hundreds of miles from home. This isolation means that advocates, friends, and family are very limited in their abilities to monitor conditions of confinement. Yet under the new regulations the only agency that would monitor implementation is DOCCS itself.
III. Problems with Proposed Regulations
The proposed regulations are deeply problematic and we do not believe they will result in a meaningful end to isolated confinement in New York State. Notably, Revised Section 301.1 makes clear that, for the next two years, there will be no limits on segregated confinement whatsoever. This is unacceptable. It sanctions cruel and unjust lengths of isolated confinement at the unchecked discretion of corrections officers. The regulations also fail to place any limits on “keeplock” segregation, a form of disciplinary confinement virtually identical to solitary except that incarcerated people are held in cells within a general population housing area, rather than a separate wing dedicated to solitary confinement. Keeplock is solitary confinement by another name, but the updated DOCCS regulations facilitate its use as a disciplinary practice with even fewer protections. So-called residential rehabilitative units guarantee five or two hours outside of the cell depending on the day of the week no guaranteed right to programming. These are intended for individuals whose duration of punishment surpasses the amount permitted by DOCCS regulations but, tellingly, the requisite additional privileges and programs to “promote personal development” remain unspecified.
NYCDS is also extremely concerned by the absence of due process in the proposed regulations. Section 301.4 provides for a hearing within seven days of arrival to disciplinary segregation housing, and review of disciplinary status every seven days for the first 60 days of placement, and “at least every 30 days thereafter.” Incarcerated individuals within the DOC system are extended the same theoretical guarantee to a hearing within seven days of arrival. Yet the majority of our clients in solitary are never brought to a hearing. DOCCS uses its new regulations to limit internal accountability with sparse and superficial reporting requirements. At NYCDS, we have witnessed decades of efforts by DOC staff to obscure the realities of disciplinary confinement for incarcerated people, and the consistent patterns of cruel treatment occurring under their authority remain concealed from the public. Similarly, DOCCS regulations offer no viable auditing mechanisms or other guarantee of adherence to the regulations.
Furthermore, the proposed regulations codify solitary confinement for youth. Pursuant to proposed sections 321.1 and 321.2, Adolescent Offenders (AOs) can be subject to “disciplinary confinement” in an Adolescent Offender Separation Unit (AOSU). There they can be locked in for 18 hours a day 5 days a week, and 22 hours a day on the remaining 2 days. (Sec. 321.2).
Solitary confinement is completely inappropriate for youth, whose minds are still developing. The very purpose of raising the age of criminal responsibility in New York was to recognize that young people are far more vulnerable than adults. If the purpose of the Raise the Age law is to truly work toward rehabilitating juvenile offenders, then wholly eliminating solitary confinement for this vulnerable group is an imperative first step. Governor Cuomo recently announced the second phase of Raise the Age by stating that sixteen and seventeen year old juvenile offenders would now “receive the evidence-based services and treatment they need to prevent them from re-offending and to prepare those returning to the community to be successful and productive citizens.” The continuation of a corrections practice scientifically proven to harm the development of young people is wildly inconsistent with this claim.
The HALT Solitary Confinement Act
We call on the state legislature to pass and the Governor to sign into law the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act (A.2500 / S.1623). The HALT Act would bring New York State’s law in line with social science research on behavior modification and trauma and international human rights standards that acknowledge the dignity of all people, including incarcerated people.
In addition to proposing a 15-day limit on solitary confinement in accordance with mainstream international conventions on torture, the HALT Act also limits time spent in isolated confinement for at-risk groups, including young adults, the elderly, and those with physical and mental disabilities. The increased vulnerability of these populations makes them more likely to sustain long-term physical and emotional damage from time spent in solitary confinement. It is essential that these rules be carefully enforced, as we currently see many of our clients in the above mentioned categories subjected to solitary confinement despite limitations already in place.
Importantly, the bill also addresses individuals held in different kinds of isolated confinement since there are a range of housing units in addition to solitary that keep people in their cells for over 17 hours per day. Unlike the DOCCS regulations, which create new categories of isolated confinement under misleading names in an attempt to arbitrarily distinguish them from solitary, the HALT Act identifies all kinds of isolated confinement, including Special Housing Units, keeplock, administrated segregation, and others, to ensure that all kinds of isolation within New York State prisons are regulated. We urge prompt passage of this act.
“Rikers to Ban Isolation for Inmates 21 and Younger,” New York Times, https://www.nytimes.com/2015/01/14/nyregion/new-york-city-to-end-solitary-confinement-for-inmates-21-and-under-at-rikers.html
 “Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States,” Human Rights Watch, https://www.hrw.org/sites/default/files/reports/us1012ForUpload.pdf
 See more information on Raise the Age legislation, https://criminaljustice.cityofnewyork.us/programs/raise-the-age/