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SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023
SENATE . . . . . . . . . . . . . . No. 1511
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
James B. Eldridge
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to provide criminal justice reform protections to all prisoners in segregated confinement.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :James B. EldridgeMiddlesex and WorcesterLiz MirandaSecond SuffolkMichael J. BarrettThird Middlesex1/31/2023Vanna Howard17th Middlesex1/31/2023Lindsay N. Sabadosa1st Hampshire2/9/2023 1 of 15
SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023
SENATE . . . . . . . . . . . . . . No. 1511
By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 1511) of James B. Eldridge, Liz
Miranda, Michael J. Barrett, Vanna Howard and others for legislation to provide criminal justice
reform protections to all prisoners in segregated confinement. Public Safety and Homeland
Security.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1578 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to provide criminal justice reform protections to all prisoners in segregated confinement.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Section 1 of chapter 127 of the General Laws, as appearing in the 2018
2Official Edition, is hereby amended by inserting after the definition of “Victim” the following 6
3definitions:-
4 “Segregated confinement”, a housing placement where a prisoner is separated from the
5general population. The department shall only utilize the following types of segregated
6confinement: (1) restrictive housing; (2) disciplinary restrictive housing; (3) secure adjustment
7units; (4) secure treatment units; (5) mental health watch; (6) accountability program unit; and
8(7) security watch. 2 of 15
9 “Secure adjustment unit”, a housing placement designed to provide access to cognitive
10behavioral treatment, education, programs, structured recreation, leisure time activities and
11mental health services for prisoners diverted from or released from restrictive housing.
12 “Health services unit”, a general population housing placement designed to deliver
13healthcare services to prisoners.
14 “Mental health watch”, a housing placement intended to protect a prisoner from serious
15self-harm.
16 “Security watch”, any 24-hour observation initiated through security threats or suspicion
17of ingesting substances including drugs.
18 “General population”, any housing placement where a prisoner is not held in segregated
19confinement. In no event shall any general population unit have conditions that are similar to or
20more restrictive than segregated confinement. These conditions shall include a prisoner's access
21to: out of cell time; the yard, gym and other recreational spaces; the law library; religious
22services; canteen; personal property; visitation, including both the total available visitation time
23and the opportunity for contact visits; telephones and video visits; opportunities to earn a wage
24and opportunities to earn good time. All such access shall be maximized as much as possible.
25 SECTION 1A. Section 1 of chapter 127 of the General Laws, as appearing in the 2020
26Official Edition, is hereby amended by striking out, in line 70, the figure “22” and inserting in
27place thereof the following figure:- 21 3 of 15
28 SECTION 2. Said section 1 of said chapter 127, as so appearing, is hereby amended by
29striking out, in lines 27 and 30, the words “restrictive housing” and inserting in place thereof the
30following words:- segregated confinement
31 SECTION 3. Said section 1 of said chapter 127, as so appearing, is hereby amended by
32striking out, in lines 31 and 32, the words “clause (iv) or (v) of”
33 SECTION 4. Said section 1 of said chapter 127, as so appearing, is hereby amended by
34striking out the definition of “secure treatment unit” and inserting in place thereof the following
35definition:-
36 “Secure treatment unit”, a housing placement of any security level that is designed to
37provide an alternative to restrictive housing for prisoners diagnosed with serious mental illness
38and which provides clinically appropriate mental health treatment, programming, out of cell
39time, educational opportunities, programming and other services in accordance with clinical
40standards adopted by the department of correction in consultation with the department of mental
41health.
42 SECTION 5. Section 39 of said chapter 127, as so appearing, is hereby amended by
43striking out, in line 10, the words “restrictive housing units” and inserting in place thereof the
44following words:- segregated confinement units other than mental health watch
45 SECTION 6. Said section 39 of said chapter 127, as so appearing, is hereby amended by
46inserting after the word “authorized” in line 14 the following words: commensurate with the
47rights of general population prisoners 4 of 15
48 SECTION 7. Said section 39 of said chapter 127, as so appearing, is hereby amended by
49striking numeral (v), in lines 19 and 20, and replacing it with the following words “(v) access to
50a tablet and a radio or television, in accordance with the prisoner’s preference, if the confinement
51exceeds 48 hours.”
52 SECTION 8. Said section 39 of said chapter 127, is hereby amended by striking numeral
53(x) in subsection (b) and inserting the following two numerals in its place: (x) access to personal
54property unless contraindicated by qualified clinical mental health providers; (xi) other rights and
55privileges as may be established or recognized by the commissioner.
56 SECTION 9. Said section 39 of said chapter 127, as so appearing, is hereby amended by
57inserting at the end of subsection (d) the following sentences: Mental health treatment provided
58in segregated confinement shall be confidential and utilize best practices by professional
59standards. Medication alone, without therapy, does not constitute sufficient treatment; provided,
60however, that a prisoner may decline therapy without medication disruption if the prisoner does
61not want to participate in therapy. A minimum of 50 minutes of therapy per week shall be
62offered to every prisoner in segregated confinement by qualified clinical mental health providers.
63 SECTION 10. Said section 39 of said chapter 127, as so appearing, is hereby amended by
64inserting after subsection (e) the following subsection:- (f) Prisoners in segregated confinement
65shall be offered time out of cell indoors or outdoors, in accordance with the prisoner's preference,
66at least once a day unless contraindicated by qualified clinical mental health providers.
67 SECTION 11. Subsection (b) of said section 39 of said chapter 127, as so appearing, is
68hereby amended by inserting after the first sentence the following two sentences:- If canteen
69privileges or disability accommodations are deemed inconsistent with the security of the unit, 5 of 15
70such determination must be reviewed by the placement review examiners at each placement
71review, at which time the placement review examiners must override the determination if there is
72not substantial evidence to support it. The placement review examiners shall provide written
73explanation of their determination and all evidence relied upon, and all such determinations are
74final agency decisions.
75 SECTION 12. Said section 39 of said chapter 127, as so appearing, is hereby amended by
76striking out, in lines 34 and 41, the words “restrictive housing” and inserting in place thereof the
77following words:- segregated confinement
78 SECTION 13. Said section 39 of said chapter 127, as so appearing, is hereby amended by
79striking out, in lines 36, 37, 38 and 39, the words “or restrictive housing is otherwise clinically
80contraindicated based on clinical standards adopted by the department of correction and the
81qualified mental health professional’s clinical judgment” and inserting in place thereof the
82following words:- “. A prisoner with a serious mental illness or who is otherwise clinically
83contraindicated for restrictive housing, disciplinary restrictive housing or secure adjustment
84units, based on clinical standards adopted by the department of correction and the qualified
85mental health professional’s clinical judgment, shall only be placed in secure treatment units,
86mental health watch or general population units. Secure treatment units may be any level of
87security deemed appropriate for the population. They shall meet minimum standards for mental
88health treatment, programming and education, as established by the department’s director of
89behavioral health in consultation with the department of mental health. They shall have
90minimum out of cell time of no less than 5 hours daily. All secure treatment units must be co-
91directed by one correctional staff person and 1 clinical staff person, with equal authority in the
92unit. All clinical treatment and supervision of prisoners placed in secure treatment units shall be 6 of 15
93provided by qualified clinical mental health providers. The mental health providers will make
94the determination regarding readiness for the prisoner to be moved to a less restrictive unit.”
95 SECTION 14. Said section 39 of said chapter 127, as so appearing, is hereby amended by
96striking out, in line 47, the words “restrictive housing” and inserting in place thereof the
97following words:- segregated confinement other than a secure treatment unit or mental health
98watch
99 SECTION 15. Section 39A of said chapter 127, as so appearing, is hereby amended by
100striking out, in line 1 , the words “restrictive housing” and inserting in place thereof the
101following words:- segregated confinement other than a secure treatment unit or mental health
102watch
103 SECTION 16. Said section 39A of said chapter 127, as so appearing, is hereby amended
104by inserting after the words “restrictive housing” in line 4 the following words:- , “disciplinary
105restrictive housing or a secure adjustment unit”
106 SECTION 17. Said section 39A of said chapter 127, as so appearing, is hereby amended
107by striking out, in lines 12, 17, 20, 22, 34, 35, 38 and 39, the words “restrictive housing” and
108inserting in place thereof the following words:- segregated confinement
109 SECTION 18. Said section 39A of said chapter 127, as so appearing, is hereby amended
110by striking out subsection (d) and inserting in place thereof the following subsection:- “(d) a
111prisoner who is pregnant or who is in the first 8 weeks of the postpartum recovery period after
112giving birth shall not be placed in segregated confinement.” 7 of 15
113 SECTION 19. Said section 39A of said chapter 127, as so appearing, is hereby amended
114by striking out subsection (e) and inserting in place thereof the following subsection:- (e) Persons
115with permanent physical or developmental disabilities shall not be placed in segregated
116confinement.
117 SECTION 20. Said section 39A of said chapter 127, as so appearing, is hereby amended
118by inserting after subsection (f) the following subsection:- (g) A prisoner 21 years of age or
119younger or 55 years of age or older shall not be placed in segregated confinement.
120 SECTION 21. Section 39B of said chapter 127, as so appearing, is hereby amended by
121striking out, in lines 1, 4, 17, 34 and 35, the words “restrictive housing” and inserting in place
122thereof the following words:- segregated confinement
123 SECTION 22. Said section 39B of said chapter 127, as so appearing, is hereby amended
124by inserting after the word “39A”, in line 4, the following words:- or subsection (a) of section
12539I,
126 SECTION 23. Said section 39B of said chapter 127 is hereby amended by striking from
127subsection (a) numerals (iv) and (v) and inserting in place thereof:- (iv) is being held for any
128other reason, every 30 days.
129 SECTION 24. Said section 39B of said chapter 127, as so appearing, is hereby amended
130by inserting after the words “restrictive housing” in lines 11 and 12 the following words:- ,
131disciplinary restrictive housing, a secure adjustment unit or a secure treatment unit following an
132allegation or finding of a disciplinary breach 8 of 15
133 SECTION 25. Said section 39B of said chapter 127, as so appearing, is hereby amended
134by striking out, in line 20, the word “or” and inserting in place thereof the following word:- and
135 SECTION 26. Said section 39B of said chapter 127, as so appearing, is hereby amended
136by inserting after the word “writing” in line 20 the following words:- and be represented by an
137advocate of the prisoner’s choosing including, but not limited to, a legislator, law student,
138lawyer, paralegal or other legal representative
139 SECTION 27. Said section 39B of said chapter 127, as so appearing, is hereby amended
140by striking out, in lines 22 and 23, the words “the evidence relied on and the reasons for the
141placement decision” and inserting in place thereof the following words:- “(1) any negative
142effects of segregated confinement on the prisoner and the extent to which such effects may be
143impacting the prisoner’s behavior and perceived level of risk, (2) whether a reasonable
144probability of safety for the prisoner and third parties could be achieved if the prisoner were
145confined to general population or a less restrictive form of segregated confinement than the
146prisoner has been assigned to, (3) the factual basis or bases for the placement decision, (4) a
147written description of any statements made by the prisoner during the hearing and (5) attaching
148all supporting records and all records submitted by the prisoner”
149 SECTION 28. Said section 39B of said chapter 127, as so appearing, is hereby amended
150by striking out subsection (d).
151 SECTION 29. Said section 39B of said chapter 127, as so appearing, is hereby amended
152by inserting after subsection (e) the following two subsections:- (f) There shall be a presumption
153in favor of release to the general population at every placement review, and a prisoner may only
154be retained in segregated confinement if there is clear and convincing evidence that the prisoner 9 of 15
155poses an unacceptable risk in the general population as provided in subsection (a) of section 39,
156documented in writing. If a prisoner is being held in segregated confinement awaiting a
157disciplinary hearing or on any other awaiting action or investigation status, the prisoner shall be
158reviewed every 3 days by clinical staff and they shall be returned to the general population once
159clinical staff determine the prisoner no longer poses a threat of harm to themselves or others, in
160no event greater than 15 days. Any time on any awaiting action status shall be credited towards
161any subsequent disciplinary offense, and no disciplinary sanction shall be extended as the result
162of such credit. (g) If a placement review causes a prisoner to be held in segregated confinement
163for more than 90 days over a one-year period, the placement review shall constitute a final
164agency decision. The prisoner may file a complaint challenging the prisoner’s placement in
165segregated confinement in the superior court for the county in which the inmate is incarcerated
166or otherwise being held or in Suffolk county in accordance with section 14 of chapter 30A. The
167superior court shall determine if there is substantial evidence to support the determination of the
168placement review. If there is substantial evidence to support the determination of the placement
169review then the court shall: (1) uphold the placement in segregated confinement or (2) make
170other orders the court deems consistent with justice. If there is not substantial evidence to support
171the determination of the placement review then the court shall: (1) order that the prisoner shall be
172housed in the general population; (2) order that the prisoner shall be housed in a less restrictive
173form of segregated confinement than the prisoner is currently confined to; (3) order that the
174prisoner shall be housed in the type of segregated confinement that the department assigned the
175prisoner to; or (4) make other orders the court deems consistent with justice. The availability of
176review under this section shall not be construed to limit any judicial remedies otherwise
177available. 10 of 15
178 SECTION 30. Section 39C of said chapter 127, as so appearing, is hereby amended by
179striking out, in line 4, the words “restrictive housing” and inserting in place thereof the following
180words:- segregated confinement
181 SECTION 31. Section 39D of said chapter 127, as so appearing, is hereby amended by
182striking out, in lines 2 and 3, the words “restrictive housing” and inserting in place thereof the
183following words:- segregated confinement
184 SECTION 32. Said section 39D of said chapter 127, as so appearing, is hereby amended
185by striking out subsection (b) and inserting in place thereof the following subsection:-
186 (b) The commissioner shall publish a report quarterly and provide directly to the
187segregated confinement oversight committee and to the special commission to study the health
188and safety of lesbian, gay, bisexual, transgender, queer and intersex prisoners in correctional
189institutions, jails and houses of correction, as to each segregated confinement unit within each
190state correctional facility, and every 6 months as to each segregated confinement unit within
191each county correctional facility: (i) the number of prisoners as to whom a finding of serious
192mental illness has been delineated by diagnosis and the number of such prisoners held for more
193than 15 days; (ii) the number of prisoners who have committed suicide or committed non-lethal
194acts of self-harm; (iii) the number of prisoners according to the reason for their segregated
195confinement; (iv) a listing of prisoners with names redacted, including an anonymized
196identification number that shall be consistent across reports, age, race, gender and ethnicity and,
197if known, the voluntary self-identified sexual orientation, as defined in section 3 of chapter
198151B, and gender identity, as defined in section 7 of chapter 4, of each prisoner subjected to
199segregated confinement, whether the prisoner was pregnant during time spent in restrictive 11 of 15
200housing, whether the prisoner has an open mental health case, the date of the prisoner’s
201commitment to segregated confinement, the length of the prisoner’s disciplinary term, if
202applicable and a summary of the reason for the prisoner’s commitment; (v) the number of
203placement reviews conducted for each type of segregated confinement and the number of
204prisoners released from each type of segregated confinement as a result of such placement
205reviews; (vi) the length of original assignment to and total time served in segregated confinement
206for disciplinary purposes for each prisoner released from said confinement as a result of a
207placement review; (vii) the count of prisoners released to the community directly or within 30
208days of release from segregated confinement; (viii) the known disabilities of every prisoner who
209was placed in segregated confinement during the previous 3 months; (ix) the number of mental
210health professionals who work directly with prisoners in segregated confinement; (x) the number
211of transfers to outside hospitals directly from segregated confinement; (xi) such additional
212information as the commissioner may determine; (xii) the number of prisoners subjected to each
213type of segregated confinement; (xiii) the number of prisoners held in segregated confinement
214for more than 15 days; (xiv) the number of prisoners 21 years of age or younger subjected to
215each type of segregated confinement; (xv) the number of pregnant prisoners subjected to each
216type of segregated confinement; (xvi) the racial and ethnic composition of prisoners subjected to
217each type of segregated confinement; (xvii) the sexual orientation and gender identity
218composition of prisoners subjected to each type of segregated confinement who have voluntarily
219disclosed during Prison Rape Elimination Act screenings or voluntarily disclose and self-identify
220at any other time during their incarceration their sexual orientation, as defined in section 3 of
221chapter 151B or gender identity, as defined in section 7 of chapter 4; (xviii) the number of
222prisoners subjected to multiple stays in each type of segregated confinement in a given reporting 12 of 15
223period; (xix) the rate of recidivism for individuals that were subject to segregated confinement.
224The information shall be published in a commonly available electronic, machine readable format.
225 SECTION 33. Said section 39D of said chapter 127, as so appearing, is hereby amended
226by inserting the following subsection:-
227 (d) The commissioner with consultation from the administrators of county correctional
228facilities, the department of public health, the department of youth services, the Fenway Institute
229and input from other stakeholders shall develop policies and procedures for prisoners to
230voluntarily disclose their sexual orientation or gender identity during initial intake to state and
231county correctional facilities and upon placement in segregated confinement. The collection of
232sexual orientation or gender identity information voluntarily provided by prisoners placed in or
233currently held in segregated confinement must be collected by members of the special
234commission on the health and safety of lesbian, gay, bisexual, transgender, queer and intersex
235prisoners.
236 SECTION 34. Section 39E of said chapter 127, as so appearing, is hereby amended by
237striking out, in line 2, the words “restrictive housing” and inserting in place thereof the following
238words:- segregated confinement
239 SECTION 35. Section 39F of said chapter 127, as so appearing, is hereby amended by
240striking out, in lines 3 and 8, the words “restrictive housing” and inserting in place thereof the
241following words:- segregated confinement other than mental health watch
242 SECTION 36. Said section 39F of said chapter 127, as so appearing, is hereby amended
243by striking out, in line 4, the words “restrictive housing” and inserting in place thereof the
244following words:- segregated confinement 13 of 15
245 SECTION 37. Section 39G of said chapter 127, as so appearing, is hereby amended by
246striking out, in lines 1, 26, 27, 36, 40, 41, 42, 43, 44, 45 and 47, the words “restrictive housing”
247and inserting in place thereof the following words:- segregated confinement
248 SECTION 38. Said section 39G of said chapter 127, as so appearing, is hereby amended
249by striking out, in line 6, the word “9” and inserting in place thereof the following word:- 10
250 SECTION 39. Said section 39G of said chapter 127, as so appearing, is hereby amended
251by inserting after the word “designee”, in line 18, the following words:- , 1 of whom shall be an
252individual who has personally experienced segregated confinement
253 SECTION 40. Said section 39G of said chapter 127, as so appearing, is hereby amended
254by striking out, in line 29, the word “The” and inserting in place thereof the following words:-
255All members of the
256 SECTION 41. Said section 39G of said chapter 127, as so appearing, is hereby amended
257by inserting after the word “institutions” in lines 29 and 30, the following words:- , including for
258surprise inspections,
259 SECTION 42. Subsection (c) of said section 39G of said chapter 127, as so appearing, is
260hereby amended by inserting after the first sentence the following four sentences:- No
261restrictions shall be placed on the ability of members of the committee to speak with the public
262or the press about public aspects of the committee’s work. The committee may ask the
263department and sheriff’s departments to develop new data and information relating to the use of
264segregated confinement. The committee shall be entitled to review nonpublic information and
265records, including, but not limited to, personnel records and prisoner records. The committee 14 of 15
266shall be entitled to review and obtain copies of all public information and records, including all
267public information that is segregable from non-public information and records.
268 SECTION 43. Said chapter 127, as so appearing, is hereby amended by inserting after
269section 39H the following section:- Section 39I. (a) A prisoner may be placed on mental health
270watch only if it is determined by a qualified mental health professional’s clinical judgment that
271the prisoner requires observation to protect the prisoner from a risk of serious self-harm.
272 (b) A prisoner who has been placed on mental health watch for more than 72 hours and
273continues to require observation to protect the prisoner from a risk of serious self-harm, as
274determined by a qualified mental health professional’s clinical judgment, shall receive enhanced
275clinical care at a specialized hospital.
276 (c) All prisoners who have been placed on mental health watch shall be fully clothed,
277limited only by patient safety considerations. Clothing shall be substantially similar to that
278which is worn in general population, and any limitations to clothing shall be determined only by
279a qualified clinical mental health professional.
280 (d) All menstruating prisoners shall be provided with appropriate personal hygiene
281supplies throughout the duration of their menstrual cycle.
282 (e) All prisoners who have been placed on mental health watch shall be provided a
283minimum of 2 blankets of the same or of substantially similar quality to blankets provided in
284general population. 15 of 15
285 (f) All prisoners who have been placed on mental health watch shall be offered time out
286of cell indoors or outdoors, in accordance with the prisoner's preference, at least once daily
287unless contraindicated by qualified clinical mental health providers.
288 SECTION 44. Chapter 127 of the General Laws is hereby amended by inserting after
289section 48B the following section:-
290 Section 48C: The commissioner and administrators of state prisons and county facilities
291shall maximize out of cell time and opportunities for prisoner participation in education, training,
292employment and all other programming including programming related to rehabilitation, health
293care and substance use. All prisoners shall have the opportunity to access at least 1 hour of
294programming daily at least 5 days per week. With the exception of restrictive housing and
295security or operational emergencies, no prisoner shall be locked into a cell for more than 16
296hours daily.
297 SECTION 45: Section 48 of Chapter 127 is hereby amended by adding after the first
298sentence of the second paragraph the following sentence:- Every state and county correctional
299facility must have at least one general high school equivalency class available and shall ensure
300access to higher education.