NYAPRS Note: Despite Governor Andrew Cuomo’s promise that he would enact sweeping changes to state policy on the use of solitary confinement, justice has yet to be delivered. As Dan Clark emphasizes below, “for those doing time in state prisons, that means the current model of solitary confinement is here to stay until New York either enacts administrative changes to the practice, or the Legislature moves to enshrine the shift into state law.” Contrast this with New York City’s plan to end the use of solitary confinement altogether. New York State must enact landmark ‘HALT’ legislation!
Slow Rollout For Solitary Reforms
By Dan Clark Albany Times Union
ALBANY — It’s been a year since Gov. Andrew Cuomo said New York would enact new regulations to restrict and change the use of solitary confinement in state prisons — but those new rules have yet to be finalized by the state, despite being formally proposed last August.
And legislation that would overhaul the state’s use of solitary confinement, which has support from a majority of lawmakers in the Legislature, isn’t expected to pass anytime soon.
For those doing time in state prisons, that means the current model of solitary confinement is here to stay until New York either enacts administrative changes to the practice, or the Legislature moves to enshrine the shift into state law.
“I’m not happy about it, by any stretch of the imagination,” said state Sen. Luis Sepulveda, a Democrat from the Bronx who chairs the chamber’s Crime Victims, Crime and Correction Committee. “If (Cuomo’s regulatory change) is the best we can have right now, then I want to make sure that at least this has been enforced.”
Sepulveda carries legislation that would severely limit the use of solitary confinement in state prisons and invest more resources in different forms of isolation focused on programming and services for incarcerated individuals that need to be separated from the general population.
That bill, called the Humane Alternatives to Long Term Solitary Confinement (HALT) Act, failed to pass last year after Cuomo claimed it would cost too much for localities and the state to implement.
Sepulveda and other Democrats disagree with Cuomo’s projected cost of the legislation, which he pegged at an initial $350 million investment from the state coupled with an additional $1 billion price tag for municipalities.
“I don’t necessarily agree with his numbers,” Sepulveda said. “There will be some cost to enforce HALT, but not $1 billion.”
But it’s Cuomo’s interpretation of the bill’s cost that’s kept it from becoming law, Sepulveda said, even with a majority of lawmakers from the state Senate and Assembly in support of the measure.
“I think it’s primarily because the governor has given it what I think is an unrealistic price tag,” Sepulveda said. “This is before COVID, so anything that’s going to cost that much will give him cause for concern.”
Instead, Cuomo came to an agreement last June with the Legislature to implement a series of administrative regulations with the same intent as the HALT Act, but milder changes than the legislation calls for.
But now, more than a year after that agreement was announced, those regulations still aren’t in effect.
That’s partly because of the state’s process for promulgating new, non-emergency regulations. They have to be proposed, released for public comment, and finalized before they take effect. That, at minimum, takes a few months.
The state Department of Corrections and Community Supervision formally proposed the new regulations last August, and invited public comment.
They’ve been in limbo ever since.
According to a spokesman for the agency, the new rules have hit a regulatory snag because of legislation approved in April as part of the state budget.
The new law transfers offenders younger than 18 from DOCCS to the state Office of Children and Family Services.
The change will require the regulations on solitary confinement to be amended and, again, opened for public comment before they’re finalized, according to DOCCS.
That’s not to say the agency has been stagnant when it comes to solitary confinement. Over the last four years, New York has reduced its reliance on the sanction in state prisons by double digits, according to DOCCS.
Some of that progress has been the result of a 2015 court settlement between the state and the New York Civil Liberties Union, but other measures have been implemented independent of that agreement.
Since the settlement, the number of people sent to solitary confinement in a Special Housing Unit (SHU) cell, an isolated space with virtually no interaction for most of the day, has been cut in half. The average amount of time spent in those cells has dropped by more than 36 percent.
The number of people under the age of 22 who’ve spent time in SHU cells has also been cut in half during that time, according to DOCCS — and the number of people released straight from solitary confinement to the streets has dropped by almost 32 percent.
The regulations announced last June by Cuomo and the Legislature would likely lead to a sharper drop in those numbers, supporters have said.
The rules would ban the use of solitary confinement for certain vulnerable populations, including pregnant women, those living with a disability, and adolescents. The sanction would also only be allowed in the case of serious misconduct.
It would also be unlawful under the regulations to keep people in solitary confinement for more than 30 days at one time, though advocates have argued that there’s nothing in the rules that would prevent them from being immediately sent back for another 30 days.
Those living with a serious mental illness would be housed in mental health treatment units if they’re expected to be separated from the general prison population for more than 30 days, according to the proposed rule.
The regulations would also provide opportunities for people to be released from solitary confinement. Their status would be reviewed once a week, and their time in isolation would be reduced if they’re not accused of any violations.
Prisons would also be required to develop so-called “step-down” units, which would be used to transition individuals from solitary confinement back to the general population. Those units would come with a rehabilitation plan and out-of-cell programming.
In the meantime, DOCCS is preparing for the rules to be finalized, according to the agency’s spokesman. Construction has started on new Residential Rehabilitation Units, for example, which will provide those incarcerated with learning tools while they’re isolated.
The regulations largely mirror the HALT Act, but the legislation would set stricter guidelines and go further to change the use of solitary confinement than the proposed rules would.
For one, the HALT Act would cap the amount of time someone could spend in solitary confinement at 15 days, and would bar prisons from immediately sending someone back into isolation.
The legislation would also provide six hours of out-of-cell time each day for incarcerated individuals, compared with the one hour guaranteed to them now. They would also be allowed one hour of recreational time each day under the bill.
In short, advocates have claimed the legislation would provide a mechanism for prisons to separate individuals from the general population when needed, but in a way that’s seen as more rehabilitative than punitive.
Roger Clark, one of those advocates, said he spent about five years in some form of isolation from other incarcerated persons at Southport Correctional Facility, a state prison outside Elmira.
Clark recalled instances where he wasn’t given time out of his cell every day, and said the long-term isolation from others took a drastic toll on his mental health.
“I know I’m not the same person that I was,” Clark said. “Even up to today, I do still dream, and when I wake up I still think I’m in solitary confinement. I have nightmares about it.”
Opponents of the HALT Act see solitary confinement as a necessary mechanism for separating from the general prison population those who cause a major disturbance among other inmates.
Michael Powers, president of the New York State Correctional Officers & Police Benevolent Association, said his members view prisons as a condensed version of society.
“Bad actors that disrupt society in the streets are removed from society to maintain the safety and security,” Powers said. “It’s the same premise in a correctional facility.”
Powers also said those isolated from the general population have access to services already available in prisons — like academic programs and substance abuse treatment — and often receive more individualized attention in that context than other inmates do.
That’s not to say he considers solitary confinement to be a walk in the park. He sees it as an opportunity to provide services for people while also sanctioning them for egregious or violent behavior.
Powers disagrees with efforts from advocates to completely remove the punitive aspect of the sanction, which he doesn’t refer to as solitary confinement.
“HALT won’t work. We’re convinced of that, and it has nothing to do with the disciplinary aspect of that or anything, and there’s no consequence for bad activity anymore,” Powers said.
He also said that violence in state prisons has continued to increase over the past six years, coinciding with the agreement prompted by NYCLU’s lawsuit.
That violence, Powers said, has been against both correction officers and other inmates.
“We track that very closely,” Powers said. “The violence is still significant but higher now, today, than (was seen with) a lower inmate population 10 years ago.”
While NYSCOPBA opposes the HALT Act, Powers said he’s open to working with DOCCS on a finalized version of the forthcoming regulations on solitary confinement. But he hasn’t communicated with the agency in months, he said, likely because of the COVID-19 pandemic.
But some Democrats in the Legislature are making a renewed push for the HALT Act, saying on social media in recent weeks that they’d like to return to Albany and pass the bill. But New York is projecting more than $13 billion in lost revenue through next April, and Cuomo’s cost projections for the bill haven’t changed.
“We know that if it were to go to the governor’s desk, he’s going to veto it,” Sepulveda said.
Democrats don’t have enough votes right now to override a veto from Cuomo, meaning the chances of the HALT Act becoming law anytime soon are slim to none. And lawmakers are already feeling pressure to preserve state spending in other areas, like education and hospitals.
That could result in a piecemeal system in which solitary confinement is used in some New York facilities, but outlawed in others.
Jails, for instance, are controlled by municipalities; they typically house pretrial detainees and those convicted of crimes with a sentence shorter than a year. Prisons, controlled by the state, house individuals incarcerated for longer.
New York City Mayor Bill de Blasio announced this week that jails in the five boroughs will end the use of solitary confinement, with guidelines for ending the sanction expected later this year.
The state’s regulations restricting the use of solitary confinement could take longer. DOCCS will have to propose a set of amended regulations, then open them for public comment. But there is no deadline for when those rules have to be finalized.
On the agency’s plans for the proposed regulations, Sepulveda says he’s been left in the dark.
“I haven’t heard anything,” he said.
Dan Clark is the producer and host of WMHT’s weekly political report “New York Now.” https://www.timesunion.com/news/article/Slow-rollout-for-solitary-reforms-15383191.php?utm_source=newsletter&utm_medium=email&utm_content=headlines&utm_campaign=tu_capitolconfidential