Solitary Confinement in the Criminal Justice Package

Overview

Under the disciplinary rules of the Department of Correction, when Massachusetts prisoners are accused of serious offenses within the walls, they are entitled to an administrative hearing about what happened.   If found guilty, they will be punished by a term of segregated confinement according to a schedule of penalties that runs up to 10 years for the most serious violence.

This disciplinary sentence runs concurrent with and is limited by their underlying criminal sentence (plus whatever extension of incarceration might be imposed by the court system for the new internal offense).  The segregated confinement might be the only penalty available if the prisoner is already sentenced to life without parole.

The disciplinary hearing process in Massachusetts is arguably fairer to prisoners than the “classification” approach used in many other states. Other states may classify a prisoner to segregation simply because they perceive him to be dangerous. In those states, the prisoner may remain in segregation as long as he is perceived to be dangerous, which could be for his entire incarceration.

Most prisoners serving multi-year sentences in segregation are likely to suffer psychological harms from the confinement. In fact, some believe that any solitary confinement over 15 days is unacceptably harmful. Yet, if a prisoner kills another prisoner, a punishment limited to 15 days, as some have proposed, would seem to trivialize the taking of a life.

The broad criminal justice reform package approved in April addresses this dilemma. It requires that prisoners serving longer terms in segregation have access to the programming that they need to control their behavior and that they have the opportunity to have their case reviewed every 90 days to see if they might be ready to return early to “general population” (normal confinement with other prisoners).

There will always be some prisoners who need to remain in segregation, but our legislation, if effectively implemented, should result in fewer admissions and shorter average stays in segregation. Prisoners leaving segregation should also be much better prepared to return to general population or to the street.

Conditions of “Restrictive Housing”

Prior to the reforms, Massachusetts statutes permitted the imposition of a penalty of confinement in an “isolation unit”.

Such isolation units must provide light, ventilation and adequate sanitary facilities, may contain a minimum of furniture and shall provide at least one full meal daily.

Our package formally repealed the concept of isolation.  In Massachusetts, even the most severe forms of confinement include three meals a day and regular outdoor exercise and showers, so this change merely eliminated an archaic statute.

More significantly, the package defines the new term “restrictive housing” as:

a housing placement where a prisoner is confined to a cell for more than 22 hours per day; provided, however, that observation for mental health evaluation shall not be considered restrictive housing.

The “22 hours” definition was chosen to be consistent with national usage.   It will apply to the state’s long-term Departmental Disciplinary Unit and short-term disciplinary units in both state and county facilities, where prisoners typically receive less than 2 hours of out-of-cell time per day.  It will not apply to the general population in the maximum security prison at Souza-Baranowski where inmates often are confined 20 hours per day.

The package requires that conditions within restrictive housing not depart too far from the conditions of general population housing.   It provides that prisoners in restrictive housing should generally have rights of visitation and communication and access to radio, television and reading and writing materials.

We did not dictate specific amounts of time that a prisoner in restrictive housing should be out-of-cell, beyond the requirements for showers (3 per week) and recreation (1 hour five days per week per public health regulations).  We did require that:

The commissioner shall promulgate regulations establishing standards and procedures to maximize out-of-cell activities in restrictive housing and outplacements from restrictive housing consistent with the safety of all persons.

We further required access to programming for persons in restrictive housing:

Pursuant to regulations promulgated by the commissioner, prisoners held in restrictive housing for a period of more than 60 days shall have access to vocational, educational and rehabilitative programs to the maximum extent possible consistent with the safety and security of the unit and shall receive good time for participation at the same rates as the general population.

Taken together, we believe that these rules will result in inmates in restrictive housing getting considerably more out-of-cell time and better access to programming.  This may generate increased costs, but on the other hand, our hope is that the restrictive housing population will diminish and that costs may actually decrease.

Admission to Restrictive Housing

The package regulates the use of restrictive housing, defining the exclusive circumstances in which a prisoner may be confined to restrictive housing in rewritten Sections 39 and 39A of Chapter 127.

A state or county prison administrator may confine a prisoner to restrictive housing in the following basic situations:

to discipline the prisoner or

if the prisoner’s retention in general population poses an unacceptable risk:

(i) to the safety of others;

(ii) of damage or destruction of property; or

(iii) to the operation of a correctional facility.

The package makes explicit that a prisoner being LGBTQI is not grounds for placement in restrictive housing and more generally states that:

If a prisoner needs to be separated from general population to protect the prisoner from harm by others, the prisoner shall not be placed in restrictive housing, but shall be placed in a housing unit that provides approximately the same conditions, privileges, amenities and opportunities as in general population . . .

The package categorically prohibits a restrictive housing placement of pregnant inmates.  Of course, a pregnant inmate remains subject to discipline, but they cannot be confined more than 22 hours per day.

Return to General Population

Section 86 of the package introduces the concept of a placement review.

a multidisciplinary examination to determine whether, restrictive housing continues to be necessary to reasonably manage risks of harm, notwithstanding any previous finding of a disciplinary breach, exigent circumstances or other circumstances supporting a placement in restrictive housing.

The principle is that, regardless of their disciplinary sentence, prisoners in restrictive housing should be returned to general population if it appears they can be trusted.

Prisoners are to receive placement reviews every 72 hours if they are mentally ill or being held for their own safety, every 15 days if awaiting adjudication of a disciplinary breach, or otherwise every 90 days (except that prisoners sentenced to longer-term disciplinary confinement will not receive a review until they have served at least six months).

Where the placement review is on the longer 90-day cycle, the review must include both programming and mental health staff, as well as security staff.  Additionally, the prisoner must be able to participate, at least in writing and the prisoner should be given feedback on what he needs to change in order to have a better chance of return to “general population” on his next review.

Inmates who, because of their mental illness, are sent to secure treatment units instead of restrictive housing, are entitled to reviews at least as frequently as those in restrictive housing, but may, of course, be subject to additional clinical placement reviews.

A particular concern occurs as inmates approach the wrap date on their underlying sentence.  It is certainly desirable to assure that inmates do not transition directly from restrictive housing to the street.  New Section 39F provides that:

The department shall establish policies to ensure that an inmate with an anticipated release date of less than 120 days is not housed in restrictive housing, unless: (i) the placement in restrictive housing is limited to not more than 5 days; or (ii) the inmate poses a substantial and immediate threat.

Additionally, prisoners within 180 days of their wrap date but still in restrictive housing should receive re-entry programming.

Additional Protections for Prisoners with Mental Illness

Rewritten Sections 39 and 39A of Chapter 127 strengthen existing law pertaining to prisoners with mental illness and restrictive housing.

The package preserves previous reforms requiring that prisoners in restrictive housing receive psychiatric examinations and treatment under the supervision of the department of mental health.  The package similarly preserves the existing requirement that qualified professionals make rounds in segregation units and be able to arrange confidential interviews if needed.

As under existing law, inmates must be screened for mental health conditions prior to placement in restrictive housing, but the new language strengthens the role of the mental health professional, allowing them to exercise clinical judgment as well as applying DOC clinical standards.

Before placement in restrictive housing, a prisoner shall be screened by a qualified mental health professional to determine if the prisoner has a serious mental illness or restrictive housing is otherwise clinically contraindicated based on clinical standards adopted by the department of correction and the qualified mental health professional’s clinical judgment.

As under existing law, the screening is a critical gate to restrictive housing:

A prisoner shall not be held in restrictive housing if the prisoner has a serious mental illness or a finding has been made [in screening or mental health rounds] or otherwise, that restrictive housing is clinically contraindicated . . .

The package specifies that a mentally-ill prisoner shall not serve more than 72 hours in restrictive housing unless the prison administration certifies in writing that there is no alternative.  Under old section 39A, a mentally ill prisoner could be held for up to 30 days in segregation. Under both the old and new law, a mentally-ill prisoner held temporarily in restrictive housing . . .

. . . shall be offered additional mental health treatment in accordance with clinical standards adopted by the department of correction.

Section 86 of the package offers for the first time a statutory definition of serious mental illness:

“Serious mental illness”, a current or recent diagnosis by a qualified mental health professional of 1 or more of the following disorders described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders:

(i) schizophrenia and other psychotic disorders;

(ii) major depressive disorders;

(iii) all types of bipolar disorders;

(iv) a neurodevelopmental disorder, dementia or other cognitive disorder;

(v) any disorder commonly characterized by breaks with reality or perceptions of reality;

(vi) all types of anxiety disorders;

(vii) trauma and stressor related disorders;

or (viii) severe personality disorders;

or a finding by a qualified mental health professional that the prisoner is at serious risk of substantially deteriorating mentally or emotionally while confined in restrictive housing, or already has so deteriorated while confined in restrictive housing, such that diversion or removal is deemed to be clinically appropriate by a qualified mental health professional

This definition broadens the similar definition which appears in department regulations at 103 CMR 650.01(U) — the most significant extensions perhaps being items (vi) and (vii).  Anxiety, trauma and stressor-related disorders may be common among prisoners.

Some have suggested that this definition of serious mental illness is over-broad, and we will need to see how it is applied in practice, but it was our intention to avoid exposing people with mental illness to conditions of confinement that may make their illness more painful and debilitating.

Oversight and Accountability

To assure that the goals of the package are achieved, it provides for the collection of data and for a new oversight body.

New Section 39D requires monthly reporting on headcounts within every restrictive housing unit and much more detailed quarterly reporting on the inmates within those units.

New Section 39G creates a balanced 12-member restrictive housing oversight committee including members who will likely take a public safety focus and members who will likely be focused on the treatment of prisoners.  In addition to receiving the regular reporting, the committee will have access to visit units and interview prisoners “consistent with their duties”.

Effective Date

All of the new provisions pertaining to restrictive housing take effect on December 31, 2018.