Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H2357 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3099 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 2357
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jack Patrick Lewis and Samantha Montaño
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to promote rehabilitation including guaranteed health, treatment, and safety for
13	13	incarcerated LGBTQI+ People.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :DATE ADDED:Jack Patrick Lewis7th Middlesex1/19/2023Samantha Montaño15th Suffolk1/22/2023Rebecca L. RauschNorfolk, Worcester and Middlesex1/22/2023James K. Hawkins2nd Bristol1/27/2023James C. Arena-DeRosa8th Middlesex3/2/2023Steven Ultrino33rd Middlesex3/2/2023Natalie M. Higgins4th Worcester3/7/2023 1 of 9
17	17	HOUSE DOCKET, NO. 3099 FILED ON: 1/20/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 2357
19	19	By Representatives Lewis of Framingham and Montaño of Boston, a petition (accompanied by
20	20	bill, House, No. 2357) of Jack Patrick Lewis, Samantha Montaño and others for legislation to
21	21	promote rehabilitation including guaranteed health, treatment and safety for incarcerated
22	22	LGBTQI+ persons. Public Safety and Homeland Security.
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act to promote rehabilitation including guaranteed health, treatment, and safety for
29	29	incarcerated LGBTQI+ People.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. Section 13 of chapter 125 of the General Laws is hereby amended by
33	33	2adding the following paragraph:-
34	34	3 The superintendent of each state correctional facility and administrator of each county
35	35	4correctional facility shall designate 1 staff member as the LGBTQI+ coordinator. The LGBTQI+
36	36	5coordinator shall:
37	37	6 (i) ensure compliance with housing compatibility standards;
38	38	7 (ii) coordinate education, employment, and program placement for incarcerated persons
39	39	8who are LGBTQI+, as defined in section 1 of chapter 127;
40	40	9 (iii) support self-facilitated LGBTQ+ groups and leisure activities as defined in section
41	41	1032C; 2 of 9
42	42	11 (iv) after consulting with incarcerated persons, ensure at least one periodical is available
43	43	12in each institutional library pertaining to living well with HIV and at least one periodical
44	44	13pertaining to the LGBTQI+ community, and
45	45	14 (v) perform other necessary responsibilities. The LGBTQI+ coordinator shall be a
46	46	15Correctional Program Officer employed by the Massachusetts Department of Correction or a
47	47	16licensed clinical social worker in houses of correction.
48	48	17 SECTION 2. Section 1 of chapter 127 of the General Laws, and section 1 of chapter 125
49	49	18as so appearing, is hereby amended by inserting the following definitions:-
50	50	19 “LGBTQI+”, lesbian, gay, bisexual, transgender, queer, intersex or not conforming to a
51	51	20specific gender identity or sexual orientation.
52	52	21 "General Population", any housing placement where an incarcerated person is not held in
53	53	22restrictive housing. In no event shall any general population unit have conditions that are similar
54	54	23to or more restrictive than restrictive housing. General population conditions shall ensure an
55	55	24incarcerated person’s reasonable access to: out of cell time; programming, education, the yard,
56	56	25gym, and other recreational spaces; the law library; religious services; canteen; all personal
57	57	26property; visitation, including both the total available visitation time and the opportunity for
58	58	27contact visits; telephones and video visits; opportunities to earn a wage, and opportunities to earn
59	59	28good time, as available in the facility. All such access shall be maximized as much as possible.
60	60	29 “Incarcerated Person”, inmate, prisoner, or detainee.  3 of 9
61	61	30 “Consensual”, free from fraud, force, or coercion; provided, however, that any sexual
62	62	31contact or relations between correctional officers and incarcerated persons shall not be deemed
63	63	32consensual.
64	64	33 SECTION 3. Said chapter 127, as so appearing, is hereby amended by inserting after
65	65	34section 21 the following section:-
66	66	35 Section 21A. Upon intake at a correctional facility, each incarcerated person shall be
67	67	36provided an opportunity to voluntarily disclose their sexual orientation and gender identity,
68	68	37provided further that an incarcerated person may also disclose this information at any time
69	69	38during their incarceration. The correctional facility shall document the information which shall
70	70	39be made available to the LGBTQI+ coordinator, staff persons who use the information for
71	71	40classification purposes and any other purpose related to implementing the National Standards to
72	72	41Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA),
73	73	42and any other staff persons designated by the commissioner of correction or sheriff; provided,
74	74	43however, that the commissioner and sheriffs shall minimize access to sensitive information.
75	75	44Aggregated data on the number of incarcerated persons who voluntarily disclosed their sexual
76	76	45orientation and gender identity shall be made publicly available on an annual basis for each
77	77	46correctional facility; provided, however, that the report shall not include any personally
78	78	47identifiable information.
79	79	48 SECTION 4. Section 22 of said chapter 127, as so appearing, is hereby amended by
80	80	49adding the following paragraph:-
81	81	50 Upon intake at a correctional facility, each incarcerated person shall be provided an
82	82	51opportunity to voluntarily disclose personally held homophobic or transphobic sentiments, 4 of 9
83	83	52provided further that the incarcerated person may also disclose this information at any time
84	84	53during their incarceration. The correctional facility shall document the information, whether it is
85	85	54provided by the incarcerated person or observed by facility staff at any time. Anyone who
86	86	55discloses, is reasonably believed to harbor, or demonstrates behavior consistent with
87	87	56homophobic or transphobic sentiments shall not be housed in the same cell as someone who
88	88	57identifies as LGBTQI+ or who may be perceived as LGBTQI+; provided that no person shall be
89	89	58punished for disclosure or nondisclosure of such information. Information obtained consistent
90	90	59with this section shall not be shared with the Department of Probation or the Parole
91	91	60Board.  Aggregated data on the number of incarcerated persons who disclose, are reasonably
92	92	61believed to harbor, or demonstrate behavior consistent with homophobic or transphobic
93	93	62sentiments shall be made publicly available on an annual basis for each correctional facility;
94	94	63provided, however, that the report shall not include any personally identifiable information.
95	95	64 SECTION 5. Said chapter 127, as so appearing, is hereby amended by inserting after
96	96	65section 32A the following 3 sections:-
97	97	66 Section 32B. For the purposes of this section, the term “superintendent” shall mean the
98	98	67superintendent of each state correctional facility and administrator of each county correctional
99	99	68facility.
100	100	69 Each correctional facility shall make publicly available on their websites anonymized
101	101	70data, aggregated annually, no later than June 30, that is required by Standard 115.87 of the
102	102	71National Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape
103	103	72Elimination Act, 28 C.F.R. Part 115, promulgated pursuant to the federal Prison Rape 5 of 9
104	104	73Elimination Act of 2003, codified in 34 U.S.C. §§ 30301 to 30309, inclusive, hereinafter the
105	105	74PREA Standards, publicly available on their website.
106	106	75 For each PREA investigation conducted, the correctional facility shall make publicly
107	107	76available on their website the factual basis for each PREA investigation, including, but not
108	108	77limited to, whether it was initiated by staff, an incarcerated person, or a third party; a detailed
109	109	78description of the alleged incident, whether the investigated behavior was consensual, and the
110	110	79general location of the alleged incident, evidence relied upon to determine final investigatory
111	111	80outcomes, and any actions taken to respond to the allegation.
112	112	81 Furthermore, the department will report on the race, age, disability status, sexual
113	113	82orientation, and gender identity of incarcerated persons involved delineated by whether they
114	114	83were a victim, perpetrator, or consensual party to said investigation; provided however, that the
115	115	84detailed description of the complaint shall not include any personally identifiable information of
116	116	85incarcerated persons.
117	117	86 Annually, each correctional facility shall make publicly available on their website the
118	118	87incident-based data that would be necessary to answer all questions from the most recent version
119	119	88of the Survey of Sexual Violence conducted by the Department of Justice; provided, however,
120	120	89that the data shall not include any personally identifiable information of incarcerated persons. All
121	121	90formal or informal institutional grievances and federal Americans With Disabilities Act requests
122	122	91related to sexual abuse or the general wellbeing of LGBTQI+ persons and those living with
123	123	92HIV shall be redacted and made publicly available on each correctional facility’s website.
124	124	93 Section 32C. (a) Notwithstanding any general law or special law to the contrary, the state
125	125	94auditor shall be provided with access to all PREA-related records, including, but not limited to, 6 of 9
126	126	95all information contained in each facility’s PREA database and any information provided to any
127	127	96PREA auditor before, during or after a PREA audit, including documents or records reviewed
128	128	97on-site. The state auditor shall also be provided access to all state prisons and houses of
129	129	98correction in the commonwealth and shall be allowed to privately interview incarcerated people,
130	130	99and staff to the extent practicable. (b) The state auditor shall prepare an annual report, produced
131	131	100not later than February 1, analyzing risk factors and systemic issues regarding sexual abuse in
132	132	101state prisons and houses of correction, as well as specific recommendations to improve
133	133	102outcomes. The state auditor shall submit its annual report to the governor, the attorney general
134	134	103and the joint committee on the judiciary, and the report shall be publicly available.
135	135	104 Section 32D.  Each correctional facility shall provide meaningful opportunities for
136	136	105LGBTQI+ incarcerated persons to:
137	137	106 (i) congregate;
138	138	107 (ii) form and self-facilitate self-help or support groups;
139	139	108 (iii) receive LGBTQI+ themed literature in the institutional library, including one
140	140	109commonly read periodical about living well with HIV and one commonly read periodical about
141	141	110the LGBTQI+ community; (iv) watch LGBTQI+ movies free of charge; and
142	142	111 (v) celebrate June as Pride month. Provided further, each correctional facility shall allow
143	143	112visitors to participate in subsection (ii) and subsection (v).
144	144	113 Section 39A of said chapter 127, as so appearing, is hereby amended by striking out
145	145	114subsection (c) and inserting in place thereof the following subsection:- 7 of 9
146	146	115 SECTION 6. Section 38F of said chapter 127, as so appearing, is hereby amended by
147	147	116striking out Section 38F and inserting in place thereof the following:-
148	148	117 Section 38F. An incarcerated person shall not file any claim that may be the subject of a
149	149	118grievance under section 38E unless the incarcerated person has exhausted the administrative
150	150	119remedy established pursuant to said section 38E; but the court shall consider such claim if a final
151	151	120administrative resolution of a grievance filed pursuant to said section 38E has not been decided
152	152	121within 180 days from the date of filing such a grievance, or if the incarcerated person can
153	153	122demonstrate to the court that exigent circumstances exist which, if delayed pursuant to the
154	154	123requirements of this section, would jeopardize the life or seriously impair the health of the
155	155	124incarcerated person, or, for actions seeking equitable relief; or if the claim by an incarcerated
156	156	125person is directly related to sexual abuse, serious bodily harm, or medical issues.
157	157	126 SECTION 7. Section 39A of said chapter 127, as so appearing, is hereby amended by
158	158	127striking out subsection (c) and inserting in place thereof the following subsection:-
159	159	128 (c) The fact that an incarcerated person identifies as LGBTQI+ shall not be grounds for
160	160	129involuntary placement in restrictive housing or involuntary removal from the general population,
161	161	130provided however, that an incarcerated person who identifies as LGBTQI+ may request to be
162	162	131removed from the general population for their own safety at any time.
163	163	132 SECTION 8. Section 39A of said chapter 127, as so appearing, is hereby further amended
164	164	133by striking out subsection (f) and inserting in place thereof the following 4 subsections:-
165	165	134 (f) No incarcerated person shall be placed in restrictive housing, removed from general
166	166	135population, or disciplined in any way for reporting in good faith an act of sexual abuse, provided 8 of 9
167	167	136that an incarcerated person may request to be removed from general population for their own
168	168	137safety at any time.
169	169	138 (g) Any incarcerated person that engages in consensual sexual activity shall not be
170	170	139removed from general population. Provided further, such behavior shall not be grounds for
171	171	140removal of visitation, or phone privileges, provided further, any guilty finding on a disciplinary
172	172	141report for consensual sexual activity shall not be used in determining the classification status or
173	173	142parole eligibility of an incarcerated person.
174	174	143 (h) Affectionate, non-sexual contact between incarcerated persons, including but not
175	175	144limited to handshakes, hugs, touching of another's hair and other forms of non-sexual contact,
176	176	145shall not be subject to disciplinary action, nor shall such incidents be used as a basis to punish or
177	177	146penalize an incarcerated person in any way.
178	178	147 (i) An incarcerated person shall not be confined to restrictive housing except pursuant to
179	179	148section 39 or this section.
180	180	149 SECTION 9. Section 16 of said chapter 127, as so appearing, is hereby amended by
181	181	150adding the following 3 sections:
182	182	151 16A: Each correctional facility shall ensure that an incarcerated person that requests
183	183	152access to medication to prevent the transmission of HIV be provided such medication at no cost
184	184	153to the incarcerated person, provided further, that reasons for requesting said medication shall be
185	185	154kept confidential between the medical provider and incarcerated person and not be shared with
186	186	155security or administrative staff, provided however, that said medication shall only be provided if
187	187	156clinically appropriate. 9 of 9
188	188	157 16B: Each correctional facility shall ensure that any incarcerated person prescribed
189	189	158medication to prevent the transmission of HIV or to control and manage HIV, whether held on
190	190	159pre-trial or committed status, shall be provided a thirty day supply upon release from custody.
191	191	160 16C: Each correctional facility shall ensure that an incarcerated person prescribed
192	192	161medication to control and manage HIV shall be permitted to keep said medication on their
193	193	162person or in their cell to ensure regular and timely dosage of said medication.
194	194	163 SECTION 10. Section 32A of said chapter 127, as so appearing, is hereby amended by
195	195	164adding the following sentence:-
196	196	165 Any incarcerated person with a gender dysphoria diagnosis shall also be housed in a
197	197	166single occupancy cell, unless they request otherwise, provided that the facility is at or below 90%
198	198	167occupancy on the day of assignment.
199	199	168 SECTION 11. Said chapter 127 is hereby amended by inserting after section 39H the
200	200	169following
201	201	170 section:- Section 39I. The Commissioner and sheriffs shall ensure that all mental health
202	202	171providers within their facilities, hired or contracted, are trained in and can demonstrate cultural
203	203	172competency in working with LGBTQI+ individuals.