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Massachusetts House Bill H3956

Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3956 Compare Versions

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22 HOUSE DOCKET, NO. 3646 FILED ON: 1/20/2023
33 HOUSE . . . . . . . . . . . . . . . No. 3956
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 Russell E. Holmes and Liz Miranda
88 _________________
99 To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
1010 Court assembled:
1111 The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
1212 An Act creating an independent correctional oversight office to facilitate the recommendations of
1313 the Special Legislative Commission on Structural Racism in Correctional Facilities of the
1414 Commonwealth.
1515 _______________
1616 PETITION OF:
1717 NAME:DISTRICT/ADDRESS :DATE ADDED:Russell E. Holmes6th Suffolk1/20/2023Liz MirandaSecond Suffolk1/20/2023Lindsay N. Sabadosa1st Hampshire2/15/2023Christine P. Barber34th Middlesex2/15/2023 1 of 16
1818 HOUSE DOCKET, NO. 3646 FILED ON: 1/20/2023
1919 HOUSE . . . . . . . . . . . . . . . No. 3956
2020 By Representative Holmes of Boston and Senator Miranda, a joint petition (accompanied by bill,
2121 House, No. 3956) of Russell E. Holmes, Liz Miranda and others for legislation to authorize an
2222 independent correctional oversight office to facilitate the recommendations of the Special
2323 Legislative Commission on Structural Racism in Correctional Facilities of the Commonwealth.
2424 The Judiciary.
2525 The Commonwealth of Massachusetts
2626 _______________
2727 In the One Hundred and Ninety-Third General Court
2828 (2023-2024)
2929 _______________
3030 An Act creating an independent correctional oversight office to facilitate the recommendations of
3131 the Special Legislative Commission on Structural Racism in Correctional Facilities of the
3232 Commonwealth.
3333 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3434 of the same, as follows:
3535 1 SECTION 1. The General Court hereby adopts the following findings of the Special
3636 2Legislative Commission on Structural Racism in Correctional Facilities of the Commonwealth
3737 3Final Report:
3838 4 (i) Structural racism exists within commonwealth’s correctional system resulting in the
3939 5disparate treatment and impact of Black, Indigenous, and People of Color (BIPOC) including
4040 6incarcerated individuals, correctional staff and other intersecting identities including LGBTQ+,
4141 7immigrant status and language; and
4242 8 (ii) Structural racism within correctional facilities manifests in 4 forms: 2 of 16
4343 9 (1) Institutional Racism. This form of racism includes policies, procedures and cultural
4444 10practices of commonwealth’s correctional system that perpetuate racial inequality. Such
4545 11inequalities are most prominently in healthcare education, access, diagnosis, and treatment;
4646 12services to BIPOC immigrants and English Language Learners; cultural and ethnic affinity group
4747 13programming and services; job and workforce development opportunities; data systems tracking
4848 14staff and incarcerated individual experiences; and the lack of transparency in budgeting and
4949 15decision-making;
5050 16 (2) Systemic Racism. The joint operation of institutions operating within and in
5151 17conjunction with the commonwealth’s correctional system that produce racialized outcomes,
5252 18even in the absence of racist intent;
5353 19 (3) Interpersonal Racism. The individual interactions of correctional community
5454 20members, including incarcerated persons and correctional staff, within commonwealth’s
5555 21correctional system that result in the disparate treatment of BIPOC correctional community
5656 22members, including incarcerated persons and staff; and
5757 23 (4) Internalized Racism. This includes individual and community attitudes, beliefs and
5858 24prejudices about race held by commonwealth’s correctional system community members that
5959 25result in disparate treatment and impact of BIPOC correctional community members, including
6060 26incarcerated persons and correctional staff.
6161 27 SECTION 2. Chapter 12A of the General Laws is hereby amended by adding the
6262 28following section:-
6363 29 Section 16. (a) As used in this section the following terms shall, unless the context clearly
6464 30requires otherwise, have the following meanings: 3 of 16
6565 31 “Administrator”, a person charged with administration of a program, an office or a
6666 32division of the department or administration of a private agency.
6767 33 “BIPOC”, Black, Indigenous and People of Color.
6868 34 “Correctional community members”, incarcerated persons and correctional staff who
6969 35identify as BIPOC.
7070 36 “Correctional facility”, any building, enclosure, space, structure, or vehicle used for the
7171 37custody, control and rehabilitation of committed offenders or of such other persons as may be
7272 38placed in custody therein in accordance with law regardless of whether the facility is owned,
7373 39operated, or controlled by a county sheriff or by the department of correction; provided however,
7474 40this shall not include the facilities operated by the department of youth services.
7575 41 “Department”, department of correction, house of corrections and county jails.
7676 42 “Private agency”, an entity that contracts with the department or contracts to provide
7777 43services to another entity that contracts with the department.
7878 44 “Record”, any recording in written, audio, electronic transmission, or computer storage
7979 45form, including but not limited to a draft, memorandum, note, report, computer printout, notation
8080 46or message, and includes but is not limited to medical records, mental health records, case files,
8181 47clinical records, financial records and administrative records.
8282 48 (b) There is hereby established within the office an anti-racism division. The division
8383 49shall be called the Inclusion, Diversity, Anti-Racism, and Equity Unit, hereinafter referred to as
8484 50IDAREU. 4 of 16
8585 51 (c)(1) There shall be in the office an anti-racism corrections inspector general, who shall
8686 52be the administrative head of division and who shall be appointed by the attorney general, the
8787 53state auditor and the chair of the black and latino caucus and confirmed by a majority vote of the
8888 54community council for a term of 5 years. The person so appointed shall be selected without
8989 55regard to political affiliation and solely on the basis of integrity, expertise in the area of structural
9090 56racism including at least 5 years experience designing and implementing anti-racist strategies,
9191 57tools and materials and demonstrate ability in statistics, law, management, public administration,
9292 58investigation, criminal justice administration or other closely related fields.
9393 59 (2) In case of a vacancy in the position of anti-racism corrections inspector general, their
9494 60successor shall be appointed in the same manner for the unexpired term. No person shall be
9595 61appointed for more than 2 five-year terms.
9696 62 (3) Appointing authorities shall make due efforts to assure that BIPOC community
9797 63members have notice when the position is vacant.
9898 64 (4) No former or current employee of the department of correction or county correctional
9999 65facility shall be appointed to the position within 10 years after such former or current period of
100100 66service with the department or county.
101101 67 (5) The anti-racism inspector general may be removed from office, for cause, by a
102102 68majority vote of the attorney general, the chair of the black and latino caucus and a majority vote
103103 69of members of the community advisory board. Such a cause may include substantial neglect of
104104 70duty, gross misconduct or conviction of a crime. The reasons for removal of the anti-racism
105105 71corrections inspector general shall be stated in writing and shall include the basis for such
106106 72removal. Such writing shall be sent to the clerk of the senate, the clerk of the house of 5 of 16
107107 73representatives and to the governor at the time of the removal and shall be deemed to be a public
108108 74document.
109109 75 (d)(1) There shall be an anti-racism corrections inspector general community council
110110 76which shall consist of 10 members including the attorney general or a designee, the state auditor
111111 77or a designee, a designee of Prisoners’ Legal Services of Massachusetts, 2 members appointed by
112112 78the speaker of the house of representatives none of whom may be members of the General Court,
113113 792 members appointed by the president of the senate none of whom may be members of the
114114 80General Court, and 3 members appointed by the black and latino caucus none of whom may be
115115 81members of the General Court.
116116 82 (2) At least 1 member of the council shall be an immediate family member of an
117117 83incarcerated person serving in a department correctional facility at the time of their appointment;
118118 84at least one additional member shall be an immediate family member of an incarcerated person
119119 85who served in a county correctional facility within the last 5 years at the time of their
120120 86appointment; at least 1 additional member shall be a formerly incarcerated person who served in
121121 87a department correctional facility within the last 5 years at the time of their appointment; at least
122122 881 additional member shall be a formerly incarcerated person who served in a county correctional
123123 89facility within the last 5 years at the time of their appointment. At least 5 council members shall
124124 90be directly impacted by structural racism.
125125 91 (3) Appointing authorities shall make due effort to assure BIPOC populations have notice
126126 92when advisory board positions are vacant.
127127 93 (4) The appointed members shall serve for a term of 5 years and shall be compensated for
128128 94work performed for the anti-racism corrections inspector general council at such rate as the 6 of 16
129129 95secretary of administration shall determine and shall be reimbursed for expenses necessarily
130130 96incurred in the performance of their duties. The anti-racism corrections inspector general shall
131131 97meet with the council at least quarterly and may consult or request the assistance of members of
132132 98the anti-racism community council with respect to the duties and responsibilities of the office.
133133 99 (e)(1) The anti-racism corrections inspector general may, subject to appropriation,
134134 100appoint and may remove such employees, as they deems necessary to perform the duties of their
135135 101office.
136136 102 (2) With the exception of the attorney general, and the state auditor, no member of the
137137 103anti-racism corrections inspector general council or officer or employee of IDAREU shall hold,
138138 104or be a candidate for, any elective public office while an officer or employee, or for 3 years
139139 105thereafter, nor shall he hold office in any political party or political committee, or participate in
140140 106any political campaign of any candidate for public office while an officer or employee.
141141 107 (3) The anti-racism inspector general, with the advice and consent of the inspector
142142 108general and the anti-racism corrections community council may apply for and receive federal
143143 109funds in order to fulfill the duties and responsibilities of the office.
144144 110 (f) IDAREU shall act to dismantle structural racism and ensure the equitable treatment of
145145 111all prisoners and correctional staff in the day-to-day operations of commonwealth’s correctional
146146 112system by assuring accountability, transparency and compliance with anti-racism standards as
147147 113established by the office.
148148 114 (g)(1) The anti-racist corrections inspector general may investigate, inspect, examine,
149149 115review, or otherwise assess any aspect of corrections facilities or systems as it relates to the day-
150150 116to-day operations or conditions including, but not limited to: 7 of 16
151151 117 (i) canteen, inmate benefit funds and disbursements
152152 118 (ii) searches including cell searches, pat searches, strip or bodily searches;
153153 119 (iii) classification;
154154 120 (iv) covid-19;
155155 121 (v) educational, vocational and other programming;
156156 122 (vi) institutional employment and re-instatement of employments upon discipline;
157157 123 (vii) gang designation;
158158 124 (viii) staff recruitment, training, supervision, and discipline;
159159 125 (ix) food services;
160160 126 (x) inmate funds;
161161 127 (xi) mail distribution and dissemination;
162162 128 (xii) incarcerated person deaths, injuries, or harassment;
163163 129 (xiii) housing;
164164 130 (xiv) incidents of assault, battery, or sexual misconduct;
165165 131 (xv) medical or mental health care, including care provided to incarcerated persons by
166166 132third parties;
167167 133 (xvi) violence among incarcerated persons;
168168 134 (xvii) conditions of confinement; 8 of 16
169169 135 (xviii) incarcerated person disciplinary processes;
170170 136 (xix) incarcerated person grievance processes;
171171 137 (xx) substance use disorder treatment;
172172 138 (xxi) family visitation and communication practices;
173173 139 (xxii) rehabilitation, reentry, and integration practices;
174174 140 (xxiii) misidentification;
175175 141 (xxiv) personal property;
176176 142 (xxv) re-entry services; and
177177 143 (xxvi) use of force
178178 144 (2) The anti-racism corrections inspector general shall review legislation and regulations
179179 145relating to programs and operations of corrections and shall make recommendations concerning
180180 146the effect of such legislation or regulation in an effort to dismantle structural racism.
181181 147 (3) The anti-racism corrections inspector general may utilize resources necessary to
182182 148effectively perform its duties, including but not limited to, conducting interviews with
183183 149incarcerated community members without molestation from the department or county, and
184184 150utilizing such tools as surveys, documents, records, reports, statistics and studies to develop and
185185 151implement minimum anti-racism standards and policies in corrections.
186186 152 (4) The anti-racism corrections inspector general shall conduct a comprehensive review
187187 153of all correction records and data collection processes for the purpose of establishing and 9 of 16
188188 154implementing a statewide uniform racial data collection system. The data collected shall be
189189 155disaggregated by age, race, ethnicity, language, sex, gender identity and sexual orientation. Such
190190 156data shall be used to track and monitor the day-to-day operations of the department and county
191191 157and to alleviate the adverse impact of structural racism and ensure correctional compliance with
192192 158applicable laws, regulations and policies as related to the health, safety, welfare and
193193 159rehabilitation of incarcerated persons.
194194 160 (5) The anti-racism corrections inspector general shall investigate thoroughly and
195195 161completely, all grievances and complaints alleging disparate treatment or impact of BIPOC
196196 162correctional community members. Such investigations shall be performed independently without
197197 163regard for department and county processes or findings.
198198 164 (6) The anti-racism corrections inspector general shall regularly confer with the anti-
199199 165racism corrections inspector general co mmunity council and its designees for input into the
200200 166office’s activities and priorities. Additional input shall be sought from impacted community
201201 167members at large which shall include a minimum quarterly public meeting.
202202 168 (7) The anti-racism inspector general shall work to identify other state agencies
203203 169responsible for investigating, auditing, reviewing, or evaluating the management and operation
204204 170of state agencies, and coordinate with these agencies to share information in the furtherance of
205205 171this office’s duties.
206206 172 (8) The anti-racism corrections inspector general shall maintain, monitor, and provide a
207207 173system of response for a statewide toll-free telephone number, a collect telephone number, a
208208 174website, and a mailing address for the receipt of grievances, complaints and inquiries relating to
209209 175structural racism in corrections. 10 of 16
210210 176 (9) The anti-racism corrections inspector general shall provide, information to
211211 177incarcerated persons, representatives of incarcerated persons, agencies working with incarcerated
212212 178persons, impacted family members, and department and county staff, as it relates to the duties
213213 179and functions of the offices.
214214 180 (10) The anti-racism corrections inspector general may identify and implement ways in
215215 181which management functions can better assist in the performance of the duties and functions of
216216 182the office.
217217 183 (h) The office shall be independent of any supervision or control by any executive
218218 184agency.
219219 185 (i) The office shall have all powers necessary or convenient to carry out and effectuate its
220220 186purposes, including, but not limited to, the power to:
221221 187 (i) surveying all prisoners housed in the department and county to establish baseline
222222 188racial data, including surveying incarcerated persons to allow for an independent assessment of
223223 189the racial make-up and other identities of incarcerated persons;
224224 190 (ii) Initiate and conduct investigations to carry out and effectuate its purpose;
225225 191 (iii) Identify systemic issues and responses relating to dismantling structural racism in
226226 192corrections upon which the department and county shall implement
227227 193 (iv) Identify systemic issues and responses relating to dismantling structural racism in
228228 194corrections upon which the Governor, Legislature, Attorney General or other authorities as
229229 195identified by the office shall act; 11 of 16
230230 196 (v) recommend and facilitate the implementation of minimum statewide anti-racism
231231 197standards for correctional operations;
232232 198 (vi) hire and employ staff to perform duties and exercise the same powers as the anti-
233233 199racism corrections inspector general;
234234 200 (vii) ensure compliance with relevant statutes, rules, regulations, and policies concerning
235235 201corrections facilities, services, and treatment of incarcerated persons under the jurisdiction of the
236236 202department and within each county;
237237 203 (viii) hire and employ staff or otherwise appoint designees to perform duties and exercise
238238 204the same powers as the anti-racism corrections inspector general;
239239 205 (ix) enter into agreements or other transactions with a person, including, but not limited
240240 206to, a public entity or other governmental instrumentality or authority in connection with its
241241 207powers and duties of this office;
242242 208 (x) execute all instruments necessary or convenient for accomplishing the intended
243243 209purpose of this office;
244244 210 (xi) enter into agreements or other transactions with a person, including, but not limited
245245 211to, a public entity or other governmental instrumentality or authority in connection with the
246246 212powers and duties of this office;
247247 213 (xii) appear on its own behalf before boards, commissions, departments or other agencies
248248 214of municipal, state or federal government; 12 of 16
249249 215 (xiii) apply for and accept subventions, grants, loans, advances and contributions of
250250 216money, property, labor or other things of value from any source, to be held, used and applied for
251251 217its purposes; and
252252 218 (xiv) provide and pay for advisory services and technical assistance as may be necessary
253253 219in its judgment to carry out this chapter and fix the compensation of persons providing such
254254 220services or assistance.
255255 221 (j) The anti-racism corrections inspector general, its employees, designee or
256256 222organizational members of the community council working in furtherance of the office’s
257257 223intended purposes may enter any part or all of any place where prisoners in this state are kept and
258258 224shall be immediately admitted to such place as they desire.
259259 225 (k) The anti-racism corrections inspector general, its employees, designee or
260260 226organizational members of the community council working in furtherance of the office’s
261261 227intended purposes may consult and confer with any prisoner, department and county employees,
262262 228privately and confidentially without molestation. Such communications may be both formally
263263 229and informally, in person, by video conference, by phone, and by mail.
264264 230 (l) The anti-racism corrections inspector general may hold public hearings, subpoena
265265 231witnesses and documents and to require that witnesses testify under oath.
266266 232 (m) The anti-racism corrections inspector general may make referrals to any other civil or
267267 233criminal enforcement authority as it may see fit.
268268 234 (n) Failure of the department or county to cooperate or otherwise interfere with the
269269 235performance of the duties of this office shall result in sanctions, fines or demotion. The office, 13 of 16
270270 236for just cause, may impose fines, demote correctional administrators and staff, or otherwise limit
271271 237correctional staff interactions with incarcerated persons and their property until such time
272272 238deemed necessary by the office. All determinations shall be made in writing and subject to
273273 239appeal and corrective action by the department or county within 90 days. The department or
274274 240county shall respond in writing to the determination to impose fines, sanctions or demotion of
275275 241staff within 30 days of the decision. Failure to respond shall make null and void the opportunity
276276 242for appeal by the department or county.
277277 243 (o)(1) The anti-racism corrections inspector general has the right to access, inspect, and
278278 244copy any information, records, documents, or video or audio recordings in the possession or
279279 245control of the department or county that the anti-racism corrections inspector general considers
280280 246necessary. No claim of restriction or privilege under state law shall limit the anti-racism
281281 247corrections inspector general’s rights under this paragraph. The department or county shall assist
282282 248the corrections inspector general in obtaining any necessary releases for those documents which
283283 249are restricted or privileged under federal law.
284284 250 (2) Following a written demand from the anti-racism corrections inspector general, the
285285 251department or county shall provide the requested material within 20 days unless the anti-racism
286286 252corrections inspector general consents to an extension of that time frame. Any failure to obey the
287287 253request may be punished by imposition of fines or sanctions. Where the material requested by the
288288 254anti-racism corrections inspector general pertain to an incarcerated person’s death, threats of
289289 255bodily harm including, but not limited to, sexual or physical assaults, or the denial of necessary
290290 256medical treatment, the material shall be provided within 5 days unless the anti-racism corrections
291291 257inspector general consents to an extension of that time frame. 14 of 16
292292 258 (3) Upon notice and request by the anti-racism corrections inspector general, a state,
293293 259county, or municipal government agency, other than the department or a county sheriff, that has
294294 260information, records, documents, or video or audio recordings relevant to a complaint or an
295295 261investigation conducted by the anti-racism corrections inspector general shall provide the anti-
296296 262racism corrections inspector general with access to the material not later than 20 days unless the
297297 263anti-racism corrections inspector general consents to an extension of that time frame.
298298 264 (4) Disclosure of any information, records, documents, or video or audio recordings in
299299 265the possession or control of the department or county as requested by the anti-racism corrections
300300 266inspector general shall not be released to the public. The office may release information from the
301301 267department or county in the form of reports and other informational tools developed by the office
302302 268in performance of his duties and responsibilities.
303303 269 (5) The anti-racism corrections inspector general shall work with the department or
304304 270county to minimize disruption to the departments or county’s operations due to the anti-racism
305305 271corrections inspector general activities and shall comply with the department’s or county's
306306 272security clearance processes, provided those processes do not, in the sole judgment of the anti-
307307 273racism corrections inspector general, impede the anti-racism corrections inspector general from
308308 274carrying out the duties and intended purpose of this office.
309309 275 (6) The anti-racism corrections inspector general shall conduct investigations, audits and
310310 276reports relating to the administration of the programs and operations of the department and
311311 277county, and may make recommendations to address any identified issues as it relates to
312312 278dismantling structural racism. At the conclusion of such investigation, the anti-racism corrections 15 of 16
313313 279inspector general shall produce a public report on the outcome of the investigation, which may
314314 280include any recommendations to the department or county.
315315 281 (7) Upon request by the anti-racism corrections inspector general, the department or
316316 282county shall, within the time specified, inform the anti-racism corrections inspector general about
317317 283any action taken on the recommendations or the reasons for not complying with the
318318 284recommendations and an anticipated timeline for completion. The department and county shall
319319 285be provided with a specified time when sanctions or fines may be imposed for any failure to
320320 286comply with the recommendations of the office.
321321 287 (8) The anti-racism inspector general shall make public the results of its findings after
322322 288reasonable notice to the department and county. Correctional administrators may be provided an
323323 289opportunity to review reports and provide feedback about them to the anti-racism corrections
324324 290inspector general before their dissemination to the public; provided, however that the release of
325325 291the reports is not subject to approval from any entity or person outside the office nor it is
326326 292contingent of the review of the report by the facility. Reports shall apply legal requirements, best
327327 293correctional practices, and other criteria to objectively and accurately review and assess a
328328 294facility's policies, procedures, programs, and practices; identify systemic problems and the
329329 295reasons for them; and recommend possible solutions to those problems as it pertains to
330330 296dismantling structural racism.
331331 297 (p)(1) Annually, on or before September 15, the anti-racism inspector general shall
332332 298provide to the legislature, the governor, the attorney general, and community council a summary
333333 299of reports and investigations made under the IDAREU for the preceding year. The summary
334334 300provided shall be provided electronically. The summaries shall include recommendations and an 16 of 16
335335 301update on the status of recommendations made in prior summaries, if any. The recommendations
336336 302may address issues discovered through investigations, evaluations, surveys, inspections, reviews
337337 303and other related means of performing the duties of this office that will: (i) increase
338338 304accountability and legislative oversight of Commonwealth’s correctional system; (ii) improve
339339 305operations of the department and county; (iii) deter and identify structural racism in correction
340340 306polices, practices, and regulations; and (iv) identify inconsistencies between statutory
341341 307requirements and requirements as established by this office in an effort to dismantle structural
342342 308racism. The summaries shall not contain any confidential or identifying information concerning
343343 309the subjects of the reports and investigations.
344344 310 (2) Within the discretion of the anti-racism inspector general, summaries of reports,
345345 311investigations and other job functions in the furtherance of this offices purpose shall be published
346346 312on the office’s website and made accessible to incarcerated person quarterly.
347347 313 (q) Any person who has authority to recommend, approve, direct or otherwise take or
348348 314affect action against incarcerated persons or correctional employees shall not, with respect to
349349 315such authority:
350350 316 (i) take any action against an incarcerated person or correctional employee because of the
351351 317disclosure of information by said person to the office which the person reasonably believes
352352 318evidences wrongdoing under the office;
353353 319 (ii) take any action against an incarcerated person or correctional employee as a reprisal
354354 320for the submission of an allegation of wrongdoing to the office by such person; or
355355 321 (iii) take any action against an incarcerated person or correctional employee as a reprisal
356356 322for providing information or testimony pursuant to an investigation by the office.