by Matt Clarke

On April 1, 2021, New York Governor Andrew M. Cuomo signed into law a bill that ends long-term solitary confinement in that state starting in April 2022.

“Having spent a lot of time with the advocates who have direct stakes in this bill, this is deeply meaningful,” said Democratic state Senator Julia Salazar, who sponsored the bill.

Advocates for prisoners have been pushing for reforming the use of solitary confinement for years, citing its effect on mental health and racial disparity in its use. Blacks make up 48% of New York’s prison population but they comprise 58% of the prisoners in special housing units where prisoners are held in long-term solitary confinement. Blacks and Latinos make up 70% of state prisoners, but they are over 80% of those in solitary confinement.

Numerous research studies have shown that long-term isolation worsens mental illness, increases risk of suicide and self-harm, and results in higher rates of death after release. This means the damage caused by long-term solitary confinement is itself long-term, or even permanent.

“It didn’t take me long to start seeing things that weren’t in my cell, to start having conversations with nobody there,” said Victor Pate, who spent about 15 years in prison—two of them in isolation—and advocated for the reform legislation after he was released. “You never get over that. I’m not well by a long shot.”

Advocates began a large and intense campaign for the legislation over eight years ago, but were stymied by resistance from state leaders. Things began to change when a lawsuit prompted the state to agree to make changes to its disciplinary segregation policies (See: Peoples v. Fischer, USDC SD NY, Case No. 1:11-CV-02694-SAS.) [PLN, Nov. 2016, p. 40; Jul. 2017, p. 40.]

Pressure mounted after teenager Kalief Browder committed suicide following his release from Rikers Island. Browder had been accused of stealing a backpack and was held in jail for three years—spending nearly two of them in solitary confinement—only to have the charges dropped. The city settled a lawsuit over Browder’s death for $3.3 million [See PLN, Apr. 2019, p. 54.]

The breaking point was reached in 2019 after a transgender woman died in solitary confinement on Rikers Island due to an epileptic seizure. The LGBTQ+ community in New York organized demonstrations in the name of “Justice for Layleen Polanco,” who had been a member of the city’s extravagant ballroom scene. In 2020, the city settled a lawsuit over Palanco’s death for $5.9 million. [See PLN, Dec 2020, p. 34.]

The new law, Bill No. A0227A, had 45 initial cosponsors and 25 additional cosponsors. It defines solitary confinement as any cell confinement to 17 hours a day except during facility-wide emergencies or to provide medical or mental health treatment which must be within or in close proximity to a clinical area. It bans solitary confinement of prisoners who are younger than 22, older than 54, disabled, pregnant, in the first eight post-partum weeks, or caring for a child. It limits solitary confinement to 15 days with a maximum of 20 days every 60 days and requires segregated prisoners be offered at least 4 hours of out-of-cell programming, including at least one hour of recreation, each day.

The law defines “residential rehabilitation unit” (RRU) as a separate housing unit for therapy, treatment, a rehabilitative programming of prisoners deemed to require more than 15 days in solitary confinement using specified proceedings and mandates that RRUs “be therapeutic and trauma-informed, and aim to address individual treatment and rehabilitation needs and underlying causes of problematic behavior.” RRU residents must be offered at least 6 hours of out-of-cell congregate programming, services, treatment, and/or meals and another hour for recreation each day without the use of restraints.

The law sets up procedures for excluding RRU residents who exhibit continuing behavior that endangers others from congregate functions, but still requires that they be offered therapeutic programming and recreation and be reinstated to congregate functions as soon as possible. Extending this beyond 15 days, requires that a new act be committed within the 15 days and continuing the restrictions requires a review every 15 days with a total limit of 90 days. It also requires that a prisoner be discharged from RRU after completing an assigned rehabilitation plan and limits RRU to one year. Any associated loss of good time must be restored upon discharge from the RRU if the prisoner has substantially completed the rehabilitation plan.

The law contains provisions for placing any prisoner in pre-hearing “keeplock,” or disciplinary confinement in their cells,if it is determined during an evidentiary hearing that the person committed a specified heinous or destructive disciplinary offense such that allowing them to remain in general population would endanger others.

The law also mandates training for special housing unit, keeplock, and RRU staff to cover the goals of a non-punitive therapeutic environment, trauma-informed care, restorative justice, and dispute resolution methods. It requires the prison system to publish monthly reports on the number and characteristics of people in segregation and RRU on its website.

The law sets de-escalation, intervention, informational reports, and the withdrawal of incentives as the preferred methods of responding to misbehavior and calls the issuance of a misbehavior report and pursuit of disciplinary charges the “last resort.” It also excludes “local correctional facilities with a total combined capacity of five hundred inmates or fewer” from many of the provision of the law.

Other states have also banned or restricted the use of long-term solitary confinement. In 2017, Colorado barred its use in prisons. At least 11 other states have limited it or barred its use for certain groups, including Georgia, Nebraska, and New Mexico—all of which did so in 2019.

The tipping point for New York came after Democrats gained a legislative supermajority in the 2020 elections that would have allowed them to override a veto by Cuomo. After the bill passed both houses, they threatened to do just that. This coerced Cuomo into signing the law. However, Cuomo also wrote that “amendments are necessary” to protect staff, opening the possibility that he will push for changes in the law.

Unions representing prison and jail staff have been adamantly opposed to the new law, alleging it endangers guards. But prison experts and public defenders have pointed out that the use of solitary confinement has little effect on jail and prison violence and does nothing to address the root causes of the violence.

“It’s fear-mongering,” said Kelsey De Avila, jail service project director for Brooklyn Defender Services. See: Bill No. A0227A 

Additional source: nytimes.com

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