TESTIMONY OF:

Kelsey De Avila – Project Director, Jail Services

Written with Brooke Menschel – Director, Civil Rights and Law Reform

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Criminal Justice Oversight Hearing on Ending Solitary Confinement in New York City Jails and

Intro 2173

December 11, 2020

My name is Kelsey De Avila and I am the Project Director of Jail Services at Brooklyn Defender Services (“BDS”). BDS provides comprehensive public defense services to nearly 30,000 people each year, thousands of whom are detained or incarcerated in the City jail system either while fighting their cases in court or upon conviction of a misdemeanor and a sentence of a year or less. Thank you for the opportunity to address the Council on an issue of profound importance.

Each year, thousands of New Yorkers are subject to isolation and segregation inside our City’s jails by the Department of Correction (“DOC” or “the Department”). BDS submits this testimony on behalf of those who we represent—along with their families, friends, and advocates—who are all impacted by the serious trauma caused by DOC’s restrictive housing practices. We urge the Council to follow the advice of countless defenders, doctors, scholars, corrections experts, and human rights advocates by adopting rules that reject torture and move the City towards abolishing all forms of restrictive housing while also enhancing accountability over the Department.

This is a significant moment in our City’s history to right the wrongs isolation has brought to communities devasted by our criminal legal system. Together, we have an opportunity to not just change policy but also to address the serious systemic and cultural attitudes that lead to widespread violence and dehumanizing treatment of New Yorkers in City custody. As a community, we must hold the City accountable for how it treats people incarcerated by DOC and the long-term effects these policies have had on people and communities by demanding an end to punishment by isolation in our jails.

Background

Over the years, we have written extensively to the City Council and Board of Correction documenting the detrimental impact isolation has on people, and how the lack of accountability within the Department only exacerbates the harm people face every day while in custody.

Around the world, there is a growing consensus that solitary confinement–or isolated confinement by any name–amounts to torture.¹ And that it is not only cruel, but also counterproductive. The physical and mental health impacts of solitary confinement are significant and well documented.² The connection between isolation and violence is well- established.

Despite these realities, New York City maintains a complex and sprawling network of solitary confinement units. These units, and those who condone them, are responsible for the suffering of countless people and the death of too many New Yorkers—perhaps most notoriously Kalief Browder and Layleen Polanco. Despite widespread outrage and repeated calls for reform and oversight, the end to “solitary confinement” in New York City remains a moving target.

Within the last five years alone, the Department has created a complex web of isolation units that have the potential to trap people indefinitely. Our City’s jails are now home to units termed Punitive Segregation, Enhanced Supervision Housing, Secure Unit, Deadlock,³ Solo Housing, Restrictive Housing Unit, and many more. Each of these units severely limit a person’s movement, drastically restrict time spent outside their cell, and completely separate them from any meaningful human contact. These units produce devastating physical and mental health impacts, including death, for those subjected to them and only serve to compound the mental health crisis in our jail system. Each time one unit is shuttered or constrained due to Council or Board intervention, another pops up in its place. Simultaneously, DOC has even tried to hinder efforts to enhance protections for particularly vulnerable groups, such as ending solitary confinement for 18- to 21-year-olds and has tried to limit access to healthcare and treatment for people in restrictive housing.

The Department demonizes people in its custody in an attempt to bully the Council, the Board, and the public into allowing the Department to ignore existing rules and basic standards of human decency. In the face of such pressure, the Board has granted—even if limiting—every one of DOC’s variance requests related to restrictive housing and implicitly condoned the Departments decision to go rogue.

Reducing Isolation Improves Health and Safety

The harms of solitary confinement are well-established, and the record here in New York is replete with evidence. No one should be subjected to the dangerous conditions of restrictive housing.

The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Juan E. Méndez described the danger in a 2015 letter of support for New York’s Humane Alternatives to Long Term (“HALT”) Solitary Confinement legislation:

Research on the effects of isolation indicate that the practice can lead to the development of certain psychotic disorders, including a syndrome also known as “prison psychosis,” the symptoms of which include anxiety, depression, anger, cognitive disorders, distortions of perception, paranoia, and psychosis and self- inflicted injuries. Furthermore, due to the lack of witnesses and the solitude in which such practices are carried out, solitary confinement may give rise to other acts of torture or ill-treatment.⁴

Any use of restrictive housing poses serious, and lasting, dangers to people’s health and, in turn, their communities. Physiological conditions brought on by solitary confinement include gastrointestinal and urinary issues, deterioration of eyesight, lethargy, chronic exhaustion, headaches and heart palpitations among others.⁵ Psychological decompensation and trauma caused by solitary confinement includes severe depression, anxiety, insomnia, confusion, emotional deterioration, and fear of impending emotional breakdown.⁶ Studies have found that prolonged solitary confinement induces hallucinations and delusions, and bouts of irrational anger and diminished impulse control, leading to violent outbursts and invoking the very behavior it purports to manage.^7,8

Proponents of solitary claim—without support—that this form of inhumane treatment deters violent behavior and improves safety. Yet time and again, studies find just the opposite.⁹ The Vera Institute of Justice reports that the claim that isolation deters misbehavior and violence is one of the most common misconceptions about solitary confinement: “Subjecting incarcerated people to the severe conditions of segregated housing and treating them as the ‘worst of the worst’ can lead them to become more, not less, violent.”¹⁰ Indeed, the evidence clearly demonstrates that isolation, a practice purported by correctional staff to decrease violence, serves no legitimate purpose.

New York City is not immune from this phenomenon: Time and again, court records, investigations, and media reports demonstrate that our jails, especially those on Rikers Island, are home to astronomical rates of violence. These patterns are particularly evident when people languish indefinitely in solitary confinement. Although the City has made strides to curbing the use of isolation, we have a long way to go.

Despite significant evidence, the Department’s culture is permeated by the notion that extreme isolation and violence are the most effective ways to “correct” behavior. Rather than grappling with the toxic culture in the jails, Elias Husamudeen, former President of the Correction Officers Benevolent Association, has argued against the Board’s limitations on restrictive housing for young people, claiming that the group is the “most violent population of inmates” and that the Board “t[oo]k[]away our tools . . . [and] g[a]ve us nothing in place for it.”¹¹ Similarly, in the most recent report filed in Nunez v. City of New York, 11-cv-5845 (LTS), the court-appointed monitor Steve J. Martin characterized the culture among the staff as a “toxic environment” and notes that “[s]taff are often hyper-confrontational and respond to incidents in a manner that is hasty, hurried, thoughtless, reckless, careless or in disregard of consequences.”¹²

Although the “toxic environment” is currently widespread, reducing or eliminating the use of solitary confinement can be a first steps towards significant culture change in the Department. Colorado’s experience can provide a model for the New York City. After the State of Colorado severely curbed the use of long-term solitary confinement, the Executive Director of the Colorado Department of Corrections, Rick Raemisch, described the reasoning for the shift and the resulting culture change:

It is time for this unethical tool to be removed from the penal toolbox. Colorado has ended long-term solitary because the state has developed alternatives to its use. Not everyone agreed with my new policy. But the corrections officers who had initially opposed it changed their minds after they began to see positive results. I’ve seen and been told that the corrections officers are interacting with the [incarcerated people] in a more positive manner.¹³

New York City can and should follow suit. The Department has relied for far too long and much too heavily on isolation as a means to address violence within jails, without prioritizing other methods of discipline which have been proved more effective. DOC must adopt a disciplinary system that provides humane consequences for misconduct, a fair grievance system that resolves problems identified by incarcerated individuals, and secure housing areas without isolation where people who need to be removed from general population are allowed out-of-cell time that mirrors general population, along with programming targeted at addressing the underlying issues that lead to the aggressive or violent behavior.

Intro 2173 (Dromm)

We are grateful to the Council, and in particular Council Member Daniel Dromm, for your leadership in advocating for an end to solitary confinement in NYC jails. Though we appreciate the intent of the proposed legislation and recognize the good-faith effort of the Council to reduce the use of solitary confinement in local jails, we have serious concern with the legislation as written and cannot support Intro 2173 as currently drafted. The proposed bill lacks specificity and creates multiple loopholes which, based on experience, we can expect the Department to use to perpetuate harm against people in custody. BDS is committed to ending the torture of solitary confinement. If the City Council chooses to move forward Intro 2173, we offer the following recommendations.

All People in DOC Custody Should Be Provided 14-Hours Out-of-Cell Each Day

In order to reduce the extensive harm caused by solitary confinement, the Council should mandate a minimum standard of 14 hours out of cell for all people in NYC jails. Such a mandate is not only effective in reducing isolated confinement, it is also consistent with the Board of Correction’s current standards¹⁴ and should be required for all people in DOC custody without exception.¹⁵ While separating people may be necessary at times, it should be done in a limited and targeted fashion that ensures everyone’s safety. Wherever possible, people should be separated from other specific individuals rather than from any other human contact. If a person needs to be separated from all others during informal out-of-cell time, they should still be afforded programming out of cell to promote socialization and appropriate conduct. Fourteen hours out of cell time and robust programming are possible—if not even more important—for those assigned to restrictive housing or isolation units. While the content of programming or out- of-cell time might be revised or other benefits curtailed, the basic human necessity of leaving a cage and interacting with other people must not be compromised.

Ensure Vulnerable People are Excluded from all Isolated Confinement

While BDS, along with countless medical, corrections, and human rights experts, advocate for 14 hours out of cell as the appropriate standard for all people, there should be explicit language in the bill to ensure the most vulnerable people in DOC custody are never placed in any form of restrictive housing. The exceptions and exclusions in the current draft of the proposed bill should be expanded to ensure that all vulnerable people—people under age 26¹⁶ or over 50, pregnant people,¹⁷ people with diagnosed serious mental or physical ailments, people who suffer from physical or cognitive impairments, people subject to a heightened risk of self-harm, and others— be excluded from all forms of restrictive housing.

Out of Cell Time Must be Meaningful and Clearly Defined

The importance of out of cell time on a person’s mental and physical wellbeing is widely accepted among medical professionals, security experts, human rights scholars, and advocates. It is well-established that to prevent the mental and physical decompensation of a person while also ensuring a basic level of safety in restrictive housing, people must have access to meaningful out of cell time. Nonetheless, the Department fails time-and-again to provide appropriate and sufficient out –of cell time for people in restrictive housing in its custody. The Board is well- aware of this deficiency.¹⁸ Intro 2173 ignores this systemic shortcoming by failing to define “meaningful” out of cell time.

If “out of cell time” is comprised of walking handcuffed through a corridor, listening to commands of an officer as he escorts you to an appointment, or answering a medical provider’s questions through a door, the whole purpose of out of cell time is undermined. Instead, people must have engaging, face-to-face interaction with other human beings. Equally important, people must not be forced to choose between basic health or legal obligations and the opportunity to participate in meaningful, engaging programming. If legal visits, showers, or medical appointments count as out of cell time, the notion of mental, physical, and social stimulation is completely lost. These concepts must be inherent in the bill, and we urge the Council to define adequate out of cell time that is meaningful and not merely composed of incidental contact.

Equally problematic, certain units by design prevent people from any meaningful human out of cell time. Units designed so that when a person leaves their cell, they only enter a cage which violates the entire concept and spirit of meaningful out of cell time. For example, BDS recently represented a young man held in the Restraint Unit at NIC.¹⁹ Each time he was “allowed to leave his cell”—presumably for mandated “out of cell” time—he moved a few feet out of his physical cell but remained literally caged, alone, and isolated without any human contact. These units provide none of the meaningful stimulation that is critical to counteracting at least some of the trauma caused by isolations.

The rules must ensure that meaningful out of cell time is just that: meaningful and outside of a cell. Isolated time in a second cell is clearly not out of cell time nor is it meaningful engagement or stimulation. We urge the Council to define out of cell time makes clear that the purpose of this time is to ensure all people in custody, whether in general population or restricted housing, are provided with the necessary space and contact needed to preserve their mental and physical health, while also ensure the safety of people in custody and staff.

Continued Isolation by Another Name is Not an Alternative

In late 2013, DOC, along with the Department of Health and Mental Hygiene (“DOHMH”), (which then housed Correctional Health Services (“CHS”)), created two alternative models to solitary confinement: Restrictive Housing Unit (“RHU”) and Clinical Alternatives to Punitive Segregation (“CAPS”). Both were intended to address violent behavior by moving away from purely punitive isolation to a more therapeutic approach. While the adoption of this new strategy allowed the Mental Health Assessment Unit for Infracted Inmates (“MHAUII”)—a notorious solitary confinement unit for people with mental illness—to close, the RHU has failed to meet its charge.²⁰

Recent experiences of people isolated in the RHU confirm these realities. Layleen Polanco, the transgender woman whose death on June 7, 2019 cast one recent spotlight on the Department’s solitary confinement practices, was held involuntarily in a Restrictive Housing Unit when she died.²¹ Similarly, multiple BDS clients reported in December 2019 and January 2020 that they were isolated in “punitive segregation” and locked in their cell for at least 17 hours each day. Only after BDS investigated the cases did we learn that these people were assigned to an RHU.

The Restrictive Housing Unit is not an alternative to solitary confinement, it is simply solitary confinement by a different name. People with recognized mental health needs should be afforded a therapeutic environment run by trained clinical staff, not a punitive lock up divorced from meaningful engagement. The proposed legislation should abolish the RHUs or mandate such fundamental changes that such confusion is no longer possible.

The Department Should Adopt Evidence-Informed Alternative to Isolated Confinement

By contrast, the other “alternative” to solitary confinement adopted in 2013, Clinical Alternatives to Punitive Segregation (“CAPS”) provides a model for success.²² CAPS units have proved to be an alternative to solitary confinement that addresses behavior without resorting to the inhumane practice of isolation, but rather through meaningful engagement, increased out of cell time, and targeted programming to address needs and behavior. CAPS units provide intensive treatment and successfully reduce violence, yet far too few people are afforded this resource. Rather than allowing the Department to develop additional units that only isolate people and undermine safety, the Council should support the proliferation of the CAPS model, which provides effective programming targeted at the underlying reason for problematic behavior. Such units not only prevent trauma and protect people, they enhance safety and security throughout the entire DOC system.

Around the country, other systems have developed successful models that the Department can draw from to create effective alternatives to solitary confinement.²³ The City can invest, and the Department should welcome, true evidence-based practices and strategies that are successfully reducing violence and keeping people safe. The continued pushback the Department and COBA exhibit before the Board and the Council demonstrate the lack of willingness on behalf of DOC staff to expand the “toolbox” of strategies for dealing with challenging behavior. This attitude is unacceptable and outdated. If we continue to treat incarcerated people as undeserving of treatment and growth, and unworthy of a change, we will find ourselves in an unending cycle of violence.

Placement in Restrictive Housing Must Be Subject to a Hard Limit

There is no evidence anywhere—in academic literature, correctional best practices, or Department of Correction submissions—that suggests longer, continuous isolation sentences successfully deter or reduce violence. On the contrary, evidence suggests that reducing the use of solitary improves jail safety.

People in solitary confinement routinely report that they are denied basic needs like toilet tissue or access to the telephone to call their families or their attorneys. They describe an inability to access medical care. They report that they cannot get attention from the mental health staff when they well up with anxiety from existing in a filthy concrete box, without contact with other human beings. In order to access these basic needs, people resort to small protests like holding open the slot through which they are fed or flooding their cell. When they do, the response for the Department to send a “probe team” to forcefully extract the person from their cell. In almost all cases, the person will receive an infraction for resisting staff or assault on staff as a result of the extraction, leading to ever-longer stays in isolation. This cycle of violence only escalates as people become more desperate and restless about their conditions. Some individuals who feel their only agency lies in an act of disobedience may carry this sentiment with them into General Population – the harm of solitary reverberates through an entire system.

The solution to recurrent behavioral problems or violent conduct after release from solitary confinement is not to extend the sentences. The continued use of harmful isolation fails to engage individuals in pro-social behavior and forgoes the development of skills for resolving conflict without reliance on violence. Solitary confinement is a form of punishment; the perpetration of violence to stop violence is never successful.²⁴

Instead, replacing isolation with therapeutic programming and controlled social integration is more productive—and promising—counter to problematic conduct. If we are serious about changing the culture of abuse in our jails, we must start by imposing a hard limit on the use of isolation and not allowing the Department, and the City of New York, to continue to flout international standards.

Provide Oversight and Prevent the Expansion of Restrictive Housing

For decades, the DOC’s use of isolation has been a moving target. Each time the Board or the City Council impose guidelines, restrictions, or reporting requirements, DOC shifts the program and avoids the impact of the policy change. The nomenclature has been equally varied: over the years, DOC has introduced “Secure,” ESH, RHU, and many forms of segregation units. While the specifics of the units differ, their mission does not: they function with the goal of isolating people from meaningful human contact, access to services, and basic needs. The impact of these units is equally universal – the detrimental consequences of isolation, even in the short term, is well documented.

The Department creates new units to isolate people under the guise of security concerns. Each time, they do so without transparency or accountability for the novel approach. Housing and security designations, including “separation status” and “deadlock,” are forms of extreme isolation used by DOC that deny people basic human necessities with no meaningful way to appeal and without any imposed time limitations. And because they appear so frequently, there is little to no opportunity to challenge their creation. By the time we learn of the new units, they are fully entrenched, and the Department is seeking approval from the Board to continue their operation.

If the Council is serious about treating those the City incarcerates as human beings and curtailing violence in our jails, Intro 2173 must clearly define the rules for restrictive housing and eliminate any possibility of violating the Board’s current minimum standards. Collectively, we must demand transparency and implement meaningful protocols for all forms of isolation, not just some. We urge the Council to close the loopholes in this bill that will allow DOC to make small tweaks to its practice while continuing the pervasive use of isolation. Indeed, torture by another name is still torture.

Include Robust Due Process Protections

On a daily basis, we hear from people that we represent that they have no notice of disciplinary sanctions or other potential changes to their status in DOC, no ability to advocate for themselves, and no sense of how to navigate within DOC’s complex bureaucracy. We regularly hear from people who cannot access grievance forms or legal materials, cannot safely report complaints, and cannot respond to requests for information because of barriers artificially imposed by the Department.

These due process violations—and dozens of others too numerous to mention—are unlawful, inexcusable, and avoidable. We urge the Council to incorporate protections into the proposed bill Intro 2173.

On the most fundamental level, people are frequently transferred to a restrictive housing unit without any notice or understanding of the reason behind the transfer. On one recent occasion, one person living with mental illness we represented struggled to understand why he was transferred to “the Box” despite never receiving a ticket nor being brought for a hearing.

Although he repeatedly asked for information from officers in his unit and placed multiple calls to 311, his requests went unanswered. Understandably, he became agitated that he was being isolated for no apparent reason. BDS made numerous requests to DOC all which went unanswered leaving this man to languish in restrictive housing for a week, after which he was finally reassigned to general population without further explanation. We later learned that his placement was the result of a delayed sentence for insubordination. His story is hardly unique, as we hear similar requests for information each day.

Relatedly, people in DOC custody are regularly sentenced to time in restrictive housing as a result of an in abstentia order, allegedly required because the person refused to attend a disciplinary hearing. BDS has reason to question these rulings. When we contact DOC at a person’s request to attempt to secure a disciplinary hearing, we are routinely told that the same person refused to attend a hearing. These claims are inconsistent with conversations we’ve had with people in custody who have reached out for help. One recent example of a man who repeatedly requested a hearing is instructive. After days of asking for a hearing, another individual detained in the same restrictive housing unit told the man that he overheard officers say that they were marking the form “refused” and noting that the man—who was involuntarily locked in his cell for upwards of 17 hours each day and had been literally begging officers to bring him to a hearing—had not responded when the officers knocked on his door. Disheartened, the man gave up and simply accepted that he would likely have to serve additional time in solitary confinement for an offense he did not commit.

For those people who do manage to attend a hearing, additional protections are critical. Because of the structure of the disciplinary system, a person faces a heavy presumption of guilt from the moment they walk into an adjudication. Although the officers who adjudicate hearings claim to be impartial, the system is anything but. Instead, hearings are adjudicated by the Department, often controlled by the officers or colleagues of the officer who wrote an initial ticket, with adequate notice to any member of the DOC staff who wishes to submit evidence, in a room within DOC rather than at a neutral site. Any person brave enough to appeal—particularly from a restrictive housing unit—simply faces more of the same: they are at the mercy of corrections officers to deliver the appeal, which will then be adjudicated by yet another member of the Department. The overwhelming majority of people charged with rules violations are found guilty.

The disciplinary hearing process remains shrouded in secrecy within the closed jail system, with little public reporting and accountability. To make matters worse, people who are incarcerated have no right to counsel in these hearings, despite the gravity of the outcome. The people we represent have no opportunity to choose their own representatives or seek assistance from a trusted, impartial advocate in these hearings. While people incarcerated in DOC custody have lawyers who are often ready and willing to advocate on their behalf in disciplinary proceedings, their counsel is unable to do so because of Department rules. New York City is fortunate to have a robust public defense system filled with dedicated attorneys, social workers, and advocates eager to speak up for their clients. We urge the Council to collaborate with the City’s legal service providers and other members of the defense bar to develop a system that notifies defense attorneys immediately when a person receives a ticket and allows people in custody to be represented in their disciplinary hearings.

Due process is the cornerstone of our legal system and it should be the cornerstone of the Council’s proposed bill. We urge the Council to incorporate as many due process protections as possible into the bill before it is voted on. Any person in restrictive housing or facing a restrictive housing sentence, should have adequate notice of any sanctions they face, a full understanding of the reasoning behind any disciplinary action, and an opportunity to present their version of events with the aid of a qualified advocate or legal representation.

Young People and their Education Should be Protected

In the wake of Kalief Browder’s tragic death, the Board heeded the call of defenders, directly impacted people, advocates, and mental health professionals, and implemented new minimum standards to dramatically curtail the use of existing solitary confinement units in City jails and prohibit it altogether for young people. However, the Department’s continuous variance requests allowed DOC to create new units for the indefinite isolation of the very people BOC sought to protect. As a result, the standards failed to bring about the fundamental transformation of the punishment paradigm that was, and still is, required. Young people still languish in isolation in Secure and ESH. When they emerge, they are irreparably harmed. These units require complete and fundamental overhaul to prevent future deaths.

Simultaneously, the Council should ensure that New York City’s promise that young people have a right to receive an education through the school year in which they turn 21 is in fact a reality. Despite this unequivocal right, we hear all too often that it is nearly impossible for young people—both inside and outside of restrictive housing units—to access educational services.

Unsurprisingly, the problem is especially serious in restrictive housing units. Indeed, the July 2018 monitoring report in the Handberry litigation specifically identified restrictive housing units as perhaps the least compliant in terms of ensuring young people had access to school.

We hear these complaints on a regular basis. One young person recently was eager to work toward getting his high school equivalency credential (TASC) while on Rikers Island. After some advocacy, he was able to attend school regularly and happily reported that he was making progress toward earning his TASC. Unfortunately, that ended once he was transferred to a Secure unit. While there, his school attendance was spotty at best, and he lost much of the momentum that he had built up going to school daily. Another young person, also working to earn his high school equivalency—who spent a significant amount of time in TRU—reported that he received no educational services while in TRU. Once he came out of restrictive housing, he gave up trying to go to school on Rikers because, in his words, “it just wasn’t worth it.”

As drafted, the proposed bill fails to provide a guaranteed right to access educational programming. We urge the Council to ensure that the bill clearly recognize the right of all young adults to receive educational services, as well as concrete provisions aimed at ensuring that young people have every opportunity to realize this right. Relatedly, the bill should include the need for an immediate written plan detailing the Department's approach to discipline and behavior management for young adults in custody. The Board has repeatedly acknowledged that the lack of a written plan makes it shear impossible for the Department and the Board to effectively measure tools, and strategies for young adults. The Council could address this glaring failure of the Department to require DOC to provide written plans for young adults in their custody.

The Department’s Safety Objectives Cannot Endanger People’s Health

One of the most significant challenges people in restrictive housing face is accessing medical and mental health care. Correctional officers routinely serve as gatekeepers without the requisite knowledge or training. For instance, to access medical care in a DOC facility, an individual must submit a “sick call” request to officers in their housing unit, who are responsible for forwarding requests to medical staff. Far too often, correctional staff fail to forward sick call requests to the medical staff or falsely claim that an individual “refused” to be brought to their appointment.

Relatedly, developmental or cognitive delays often go unnoticed or unrecorded during screening, meaning manifestations of disabilities—such as difficulty following instructions—-often lead to time in restrictive housing.

While these situations threaten the health and well-being of all people in custody, they are especially dangerous for those isolated in restrictive housing—regardless of the name of the particular unit. For instance, one man BDS represented was sentenced to solitary confinement. Despite written notification from medical staff outlining his seizure disorder and the resulting danger of placing him alone in a cell, the Department isolated him. The isolation exacerbated his medical condition, leading to more regular seizures and a serious injury during a fall.

Nonetheless, DOC denied his transfer to an open dorm and opted instead to assign an officer to provide regular check-ins. Because the officer was regularly absent or asleep, the arrangement did not prevent additional harm. In another case, a person we represent was sent to solitary confinement despite using a wheelchair and requiring round-the-clock medical care and full-time assistance with basic activities. Although he was released to a more medically appropriate housing assignment following advocacy by our office and the Board, his health had already decompensated significantly as a result of a few days in isolation.

In these cases, and countless others, Department staff who were not trained medical clinicians determine the housing conditions for people with disabilities or other chronic conditions, despite the knowledge that the setting will have a direct impact on people’s health and well-being and access to critical medical care. This is incredibly troubling, especially for those people who do not have advocates who are able to intervene on their behalf and bring attention to their situations. DOC’s ability to control the medical treatment of people in their custody requires serious oversight by the Board and Council. As written, the bill does not address DOC’s role and we fear it will only grant the Department a license to continue DOC’s role as gatekeeper to medical care. Instead, we must bolster CHS’s authority and ensure CHS—not DOC—has an ultimate veto over all restrictive housing decisions.

Provide access to treatment and programming for all

Incarcerated people are regularly denied the opportunity to access specific programs or treatment because of high security classifications, housing placements, or disciplinary consequences. These programs--which serve as powerful evidence that a person is productive, engaged, and wants to participate in their own defense and well-being--are all-too-often unavailable to our clients because of alleged security concerns or housing placements. One glaring example is drug treatment programs. Broad groups of people are denied access to important programs for their substance use disorders because of high security classification or unsubstantiated gang allegations.

In a recent case, one BDS criminal defense attorney successfully advocated that a person she represented, who had a history of substance use, would serve reduced jail time if he participated in a particular program. Despite agreement of the man’s parole officer and the District Attorney, the man was denied admission into the program because of his high classification, the result of a decade-old incarceration where DOC identified him as gang affiliated. Although the client was not in a gang and was fully committed to participating in the program and turning his life around, he was not able to move forward with the agreement because of the classification.

Programs like drug treatment should be available to all who may benefit, regardless of classification, sentence, or housing assignment. Situating access to treatment and medical decision-making as the exclusive domain of healthcare providers, not DOC, is essential.

Department staff are not medically trained to recognize contraindications to restrictive housing placements. It is not possible nor appropriate for Department staff to make housing decisions when input from healthcare staff is ignored. Instead, Correctional Health Services must ensure that people’s medical and mental health needs are met. CHS staff are the on-the-ground advocates that people rely on. The bill should address the gaps in care and the potential for DOC to make medical decisions that can and will directly harm individuals. CHS must have the ultimate authority to remove a person from restrictive housing or prevent an initial placement. To ensure this option is a practical reality and not merely illusory, CHS must be notified immediately anytime someone is transferred to any type of restrictive housing. Further, CHS must be provided the resources and access to ensure constant and continuous rounding.

Include mechanism to prevent variances from this legislation’s protections

The Board of Corrections often grants variances to allow the Department of Corrections to authorize waivers to compliance with the Minimum Standards. To end solitary confinement, there must be a mechanism to prevent the DOC from requesting variance to circumvent protections. The legislation should make explicit that the BOC does not have the authority to provide waivers to any of the legislation’s protection. This should not prohibit the BOC from issuing any rules that are more protective of people who are incarcerated.

Create minimum standards for emergency lock-in

We encourage the Council to remove emergency lock-in from this legislation. If it is included, the definition must be amended to include a specific time limit. As written, this provision may allow DOC to keep people isolated, potentially indefinitely, without protection. Lockdowns amount to group punishment, apparently used by DOC as a convenient management tool with little regard for the rights of people in its custody. People are effectively held in solitary confinement for days at a time with no due process.

If it remains in this bill, there should be strict criteria for what constitutes an emergency, who can impose an emergency-lock in, only after exhausting all less restrictive options (for example, separating individuals who are causing the emergency rather than locking down an entire unit), and an hourly review—signed off by a captain or higher—to continue the lock-in. CHS and BOC must be notified.

Conclusion

Solitary Confinement. Segregation. Isolation. Restrictive Housing. No matter the term the results are the same: trauma, suffering and torture. The practice is a moral stain on our City that threatens the safety of our communities. We can no longer accept it as standard practice in our jails. Instead, we must create a society where we do not resort to violence but rather provide individualized treatment, therapeutic environments and socialization to end the cycle of violence in our jails and to promote safe communities. We urge the Council to pass legislation that eliminates the torture of solitary confinement and reflects the following standards:

• All people—without exception and regardless of housing placement—should be afforded 14 hours out of cell each day, during which they have access to meaningful engagement and programmatic activities;
• The most vulnerable people in the Department’s custody should be excluded from any type of restrictive housing or isolation;
• Eliminate punitive segregation ;
• Expand programming units that address behavior and violent misconduct;
• People should be allowed legal representation or an advocate during adjudication hearings;
• Eliminate gaps in the rules that would allow the Department to create new forms of isolation or new restrictive housing units;

Medical and mental health staff should be the ultimate gatekeeper of when and how often people in custody access medical and mental health care.

Every day the City fails to end the trauma that results from solitary confinement is another day lives are lost and minds are destroyed in New York. The time to act is now.

BDS is grateful to the Committee on Criminal Justice for hosting this important hearing and continuing to call attention to the horrifying realities of solitary confinement in New York City jails. Thank you for your time and consideration of our comments. We look forward to continuing to discuss these and other issues that impact people we represent.

If you have any additional questions, please feel free to contact me at kdeavila@bds.org.

***

¹ See for example the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), https://undocs.org/A/RES/70/17... .

² See for example Justin Strong, et al., The body in isolation: The physical health impacts of incarceration in solitary confinement, PLOS ONE, October 2020, Available online at https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0238510; Fatos Kaba, et al, Solitary Confinement and Risk of Self-Harm Among Jail Inmates, American Journal of Public Health, March 2014, Available online http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2013.301742.

³ Clients represented by Brooklyn Defender Services have reported they were held on Deadlock status, referring to 24 hours a day lock-in with no access to showers, telephones, law library and recreation. BDS submitted a Freedom of Information Law request to the Board and the Department for policies, procedures or directives concerning Deadlock status but thus far have not received any responsive documents. Even if no such records exist, “Deadlock status” is apparently well-known within DOC.

⁴ Letter to NY State by Juan E. Mendez, Solitary Confinement in Prisons Brings Torture Home to New York State, April 22, 2015, available at http://nycaic.org/wp-content/uploads/2013/02/UN-Special-Rapporteur-on-Tortures- Statement-on-Solitary-in-NY-State.pdf.

⁵ Sharon Shalev, A Sourcebook on Solitary Confinement, 15 (London: Manheim Centre for Criminology, London School of Economics), http://solitaryconfinement.org/uploads/sourcebook_web.pdf.

⁶ Haney, Craig ‘Mental health issues in long-term solitary and “Supermax” confinement’, in: Crime & Delinquency, 49(1) (2003) 133-136.

⁷ Id.; Grassian, S. (1983), ‘Psychopathological effects of solitary confinement’, in: American Journal of Psychiatry, 140(11), 1452.

⁸ Id.; Gilligan, J., Lee, B., (2013), Report to the [New York City] Board of Corrections, available at

http://solitarywatch.com/wp-content/uploads/2013/11/Gilligan-Report.-Final.pdf,

⁹ See, e.g., id.; Facts, Campaign for Alternatives to Isolated Confinement, http://nycaic.org/facts (noting that states that reduce the use of isolation in prisons by up to 75% see significant decreases in prison violence); Southern Poverty Law Center, Solitary Confinement: Inhumane, Ineffective, and Wasteful, (April 4, 2019) https://www.splcenter.org/20190404/solitary-confinement-inhumane-ineffective-and-wasteful (describing Colorado’s experience that reducing solitary confinement by 85% led to assaults on staff dropping to their lowest point since 2006)

¹⁰ Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives, Vera Institute of Justice, May 2015, available at http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement- misconceptions-safe-alternatives-report_1.pdf.

¹¹ Jose Olivares, Despite Scrutiny, Rikers Island’s ‘Culture of Violence’ Persists, Report Says, Nov. 30, 2017, https://www.npr.org/2017/11/30/559846083/despite-scrutiny-rikers-islands-culture-of-violence-persists-report-says ¹² Eighth Report of the Nunez Independent Monitor, No. 11-cv-05845-LTS-JCF, Doc. 332, Oct. 28, 2019

¹³ Rich Raemisch, Why We Ended Long-Term Solitary Confinement in Colorado, N.Y. Times, Oct. 12, 2017, https://www.nytimes.com/2017/10/12/opinion/solitary-confinement-colorado-prison.html

¹⁴ Board of Correction Minimum Standards, § 1-05 (noting that the no person may be involuntarily locked in a cell in DOC other than eight hours at night and two hours during the day for count).

¹⁵ The current exception allowing the Department to lock people in punitive segregation or Enhanced Supervision Housing (“ESH”) units in their cells for more than the otherwise allowed 10 hours each day should be eliminated. ¹⁶ One of the reasons that isolation is particularly harmful to young people is that during adolescence, the brain undergoes major structural growth. Particularly important is the still-developing frontal lobe, the region of the brain responsible for cognitive processing such as planning, strategizing, and organizing thoughts or actions. The brain is still developing through age 25, and the harms of isolation, light depravity and lack of meaningful interaction can

lead to significant damage. The proposed rules exclude young adults from punitive segregation up to age 22, but still subject younger people 18-21 to the harms of Enhanced Supervision Housing and Secure where hours out of cell are limited. The rules should be more inclusive and expansive, prohibiting isolation of all young people 25 years of age and younger from any form of restrictive housing.

¹⁷ Subjecting a pregnant person to any level of restrictive housing is barbaric. In 2015, the Correctional Association of New York released a report stating that “Solitary is especially dangerous for pregnant women because it impedes access to critical OB care and prevents women from getting the regular exercise and movement that are vital for a healthy pregnancy. High levels of stress are hazardous for pregnant women, lowering their ability to fight infection and increasing the risk of preterm labor, miscarriage and low birth weight in babies.” Kraft-Stolar,

Tamar. Reproductive Injustice: The State of Reproductive Healthcare for Women in New York State Prisons. The Women in Prison Project of the Correctional Association of New York (2015): 149.

¹⁸ See, e.g., Board of Correction, An Assessment of Enhanced Supervision Housing for Young Adults, July 24, 2017, 25, https://www1.nyc.gov/assets/boc/downloads/pdf/Reports/BOC-Reports/2017.07.24%20-

%20FINAL%20YA%20ESH%20Report%207.24.2017.pdf (finding evidence that young people were not afforded the requisite number of hours out of cell due to lockdowns, security procedures, staff shortages, staff tardiness, and delayed busses, among other reasons)

¹⁹ The young man believed he was being held in an ESH unit—evidence of the Departments lack of transparency and failure to provide information to impacted people.

²⁰ A 2016 article published by CHS staff noted that health staff members’ efforts to foster a therapeutic environment in the RHU largely failed because “RHUs are designed to deliver punishment via solitary confinement at the same time that clinical staff are working to engage patients in group and individual therapy for 1–4 h[ours] per day.” The article further acknowledged that “[f]or many patients, the reward of moving from one hour out of cell to two hours out of cell is not a qualitative improvement. In addition, health and security staff on these units face very complicated tasks in getting the appropriate patients out of cell for the allotted times, leaving room for patients to not receive the time out of cell or other benefits they deserve and setting the stage for discord.” Sarah Glowa- Kollisch, et. al, From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails, Feb. 13, 2016, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4772202/

²¹ Rose Goldensohn and Savannah Jacobson, Woman Who Died at Rikers Island Was in Solitary, June 10, 2019, https://thecity.nyc/2019/06/woman-who-died-at-rikers-island-was-in-solitary.html (“The restrictive housing unit where [Ms.] Polanco died stays in lockdown for 17 hours out of the day.”)

²² CAPS was “designed as [a] clinical setting where patients would not be locked in isolation, but would instead participate in a comprehensive schedule of therapeutic activities, including psychotherapy, creative art, nursing education groups, individual mental health and medical encounters and community meetings with patients, health and security staff. The CAPS units are lock-out units, meaning patients are encouraged to spend their days outside their cells interacting with others unless there is a clinical reason to be in their cell. A key design component of the CAPS unit was to form a team with health and security staff working together to promote improved clinical and security outcomes.” Data reported in 2016 demonstrates the success of the approach: CHS staff reported that for CAPS “patients, their rates of self-harm and injury were significantly lower while on the CAPS unit than when on the RHU units.” BDS clients placed in CAPS units report similar positive outcomes. Sarah Glowa-Kollisch, et. al, From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails, Feb. 13, 2016, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4772202/

²³ For example, San Francisco’s Resolve to Stop the Violence Project (“RSVP”) relies upon group discussions, classes, intensive counseling, and meetings with victims of violence to promote safety and security. The widely studied program, designed to “reduce recidivism and to promote offender accountability,” has been an overwhelming success. In addition to the positive impact on recidivism rates, the program has been an economic success as well. “[W]hile it is difficult to place a price on protecting the general public and on the quality of life that comes with safety, . . . [t]he imprisoned offender requires approximately . . . $68/day. For inmates’ families who go on welfare as a result, the costs on average is an additional $21/day. All this is without counting medical spending, work loss and need for public programmes, not to mention offender criminal processing, adjudication, probation and parole, unpaid state or federal taxes, and the escalating cost of building new prisons as a result of overcrowding. . . .

Added together, the benefits that offenders and the public derive from violence prevention programmes such as RSVP are immense.”

²⁴ The Nunez complaint provides instructive examples of DOC’s role in perpetuating the cycle of violence by documenting six examples of assaults by staff that DOC falsely claimed were assaults perpetrated by the incarcerated person. Five of the eleven named plaintiffs were sentenced to punitive segregation for purportedly assaulting the staff who beat them. Nunez v. City of New York, 11 Civ. 5845, amended complaint, filed May 24, 2012. Relatedly, a Department of Justice (“DOJ”) report uncovered a pervasive pattern of false and inaccurate reporting about uses of force and questioned the overall reliability of data being used to justify the expansion of segregation. The report documents “[u]se of force reports in which staff allege that the inmate instigated the altercation by punching or hitting the officer, often allegedly in the face or head and for ‘no reason,’ ‘out of nowhere,’ ‘spontaneously,’ or ‘without provocation.’ But then the officer has no reported injuries…” Department of Justice, CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, August 2014, 5, 25, http://www.justice.gov/sites/default/files/usao-sdny/legacy/2015/03/25/SDNY%20Rikers%20Report.pdf.