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Massachusetts Senate Bill S1511

Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S1511 Compare Versions

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22 SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023
33 SENATE . . . . . . . . . . . . . . No. 1511
44 The Commonwealth of Massachusetts
55 _________________
66 PRESENTED BY:
77 James B. Eldridge
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 to provide criminal justice reform protections to all prisoners in segregated confinement.
1313 _______________
1414 PETITION OF:
1515 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
1616 SENATE DOCKET, NO. 2383 FILED ON: 1/20/2023
1717 SENATE . . . . . . . . . . . . . . No. 1511
1818 By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 1511) of James B. Eldridge, Liz
1919 Miranda, Michael J. Barrett, Vanna Howard and others for legislation to provide criminal justice
2020 reform protections to all prisoners in segregated confinement. Public Safety and Homeland
2121 Security.
2222 [SIMILAR MATTER FILED IN PREVIOUS SESSION
2323 SEE SENATE, NO. 1578 OF 2021-2022.]
2424 The Commonwealth of Massachusetts
2525 _______________
2626 In the One Hundred and Ninety-Third General Court
2727 (2023-2024)
2828 _______________
2929 An Act to provide criminal justice reform protections to all prisoners in segregated confinement.
3030 Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
3131 of the same, as follows:
3232 1 SECTION 1. Section 1 of chapter 127 of the General Laws, as appearing in the 2018
3333 2Official Edition, is hereby amended by inserting after the definition of “Victim” the following 6
3434 3definitions:-
3535 4 “Segregated confinement”, a housing placement where a prisoner is separated from the
3636 5general population. The department shall only utilize the following types of segregated
3737 6confinement: (1) restrictive housing; (2) disciplinary restrictive housing; (3) secure adjustment
3838 7units; (4) secure treatment units; (5) mental health watch; (6) accountability program unit; and
3939 8(7) security watch. 2 of 15
4040 9 “Secure adjustment unit”, a housing placement designed to provide access to cognitive
4141 10behavioral treatment, education, programs, structured recreation, leisure time activities and
4242 11mental health services for prisoners diverted from or released from restrictive housing.
4343 12 “Health services unit”, a general population housing placement designed to deliver
4444 13healthcare services to prisoners.
4545 14 “Mental health watch”, a housing placement intended to protect a prisoner from serious
4646 15self-harm.
4747 16 “Security watch”, any 24-hour observation initiated through security threats or suspicion
4848 17of ingesting substances including drugs.
4949 18 “General population”, any housing placement where a prisoner is not held in segregated
5050 19confinement. In no event shall any general population unit have conditions that are similar to or
5151 20more restrictive than segregated confinement. These conditions shall include a prisoner's access
5252 21to: out of cell time; the yard, gym and other recreational spaces; the law library; religious
5353 22services; canteen; personal property; visitation, including both the total available visitation time
5454 23and the opportunity for contact visits; telephones and video visits; opportunities to earn a wage
5555 24and opportunities to earn good time. All such access shall be maximized as much as possible.
5656 25 SECTION 1A. Section 1 of chapter 127 of the General Laws, as appearing in the 2020
5757 26Official Edition, is hereby amended by striking out, in line 70, the figure “22” and inserting in
5858 27place thereof the following figure:- 21 3 of 15
5959 28 SECTION 2. Said section 1 of said chapter 127, as so appearing, is hereby amended by
6060 29striking out, in lines 27 and 30, the words “restrictive housing” and inserting in place thereof the
6161 30following words:- segregated confinement
6262 31 SECTION 3. Said section 1 of said chapter 127, as so appearing, is hereby amended by
6363 32striking out, in lines 31 and 32, the words “clause (iv) or (v) of”
6464 33 SECTION 4. Said section 1 of said chapter 127, as so appearing, is hereby amended by
6565 34striking out the definition of “secure treatment unit” and inserting in place thereof the following
6666 35definition:-
6767 36 “Secure treatment unit”, a housing placement of any security level that is designed to
6868 37provide an alternative to restrictive housing for prisoners diagnosed with serious mental illness
6969 38and which provides clinically appropriate mental health treatment, programming, out of cell
7070 39time, educational opportunities, programming and other services in accordance with clinical
7171 40standards adopted by the department of correction in consultation with the department of mental
7272 41health.
7373 42 SECTION 5. Section 39 of said chapter 127, as so appearing, is hereby amended by
7474 43striking out, in line 10, the words “restrictive housing units” and inserting in place thereof the
7575 44following words:- segregated confinement units other than mental health watch
7676 45 SECTION 6. Said section 39 of said chapter 127, as so appearing, is hereby amended by
7777 46inserting after the word “authorized” in line 14 the following words: commensurate with the
7878 47rights of general population prisoners 4 of 15
7979 48 SECTION 7. Said section 39 of said chapter 127, as so appearing, is hereby amended by
8080 49striking numeral (v), in lines 19 and 20, and replacing it with the following words “(v) access to
8181 50a tablet and a radio or television, in accordance with the prisoner’s preference, if the confinement
8282 51exceeds 48 hours.”
8383 52 SECTION 8. Said section 39 of said chapter 127, is hereby amended by striking numeral
8484 53(x) in subsection (b) and inserting the following two numerals in its place: (x) access to personal
8585 54property unless contraindicated by qualified clinical mental health providers; (xi) other rights and
8686 55privileges as may be established or recognized by the commissioner.
8787 56 SECTION 9. Said section 39 of said chapter 127, as so appearing, is hereby amended by
8888 57inserting at the end of subsection (d) the following sentences: Mental health treatment provided
8989 58in segregated confinement shall be confidential and utilize best practices by professional
9090 59standards. Medication alone, without therapy, does not constitute sufficient treatment; provided,
9191 60however, that a prisoner may decline therapy without medication disruption if the prisoner does
9292 61not want to participate in therapy. A minimum of 50 minutes of therapy per week shall be
9393 62offered to every prisoner in segregated confinement by qualified clinical mental health providers.
9494 63 SECTION 10. Said section 39 of said chapter 127, as so appearing, is hereby amended by
9595 64inserting after subsection (e) the following subsection:- (f) Prisoners in segregated confinement
9696 65shall be offered time out of cell indoors or outdoors, in accordance with the prisoner's preference,
9797 66at least once a day unless contraindicated by qualified clinical mental health providers.
9898 67 SECTION 11. Subsection (b) of said section 39 of said chapter 127, as so appearing, is
9999 68hereby amended by inserting after the first sentence the following two sentences:- If canteen
100100 69privileges or disability accommodations are deemed inconsistent with the security of the unit, 5 of 15
101101 70such determination must be reviewed by the placement review examiners at each placement
102102 71review, at which time the placement review examiners must override the determination if there is
103103 72not substantial evidence to support it. The placement review examiners shall provide written
104104 73explanation of their determination and all evidence relied upon, and all such determinations are
105105 74final agency decisions.
106106 75 SECTION 12. Said section 39 of said chapter 127, as so appearing, is hereby amended by
107107 76striking out, in lines 34 and 41, the words “restrictive housing” and inserting in place thereof the
108108 77following words:- segregated confinement
109109 78 SECTION 13. Said section 39 of said chapter 127, as so appearing, is hereby amended by
110110 79striking out, in lines 36, 37, 38 and 39, the words “or restrictive housing is otherwise clinically
111111 80contraindicated based on clinical standards adopted by the department of correction and the
112112 81qualified mental health professional’s clinical judgment” and inserting in place thereof the
113113 82following words:- “. A prisoner with a serious mental illness or who is otherwise clinically
114114 83contraindicated for restrictive housing, disciplinary restrictive housing or secure adjustment
115115 84units, based on clinical standards adopted by the department of correction and the qualified
116116 85mental health professional’s clinical judgment, shall only be placed in secure treatment units,
117117 86mental health watch or general population units. Secure treatment units may be any level of
118118 87security deemed appropriate for the population. They shall meet minimum standards for mental
119119 88health treatment, programming and education, as established by the department’s director of
120120 89behavioral health in consultation with the department of mental health. They shall have
121121 90minimum out of cell time of no less than 5 hours daily. All secure treatment units must be co-
122122 91directed by one correctional staff person and 1 clinical staff person, with equal authority in the
123123 92unit. All clinical treatment and supervision of prisoners placed in secure treatment units shall be 6 of 15
124124 93provided by qualified clinical mental health providers. The mental health providers will make
125125 94the determination regarding readiness for the prisoner to be moved to a less restrictive unit.”
126126 95 SECTION 14. Said section 39 of said chapter 127, as so appearing, is hereby amended by
127127 96striking out, in line 47, the words “restrictive housing” and inserting in place thereof the
128128 97following words:- segregated confinement other than a secure treatment unit or mental health
129129 98watch
130130 99 SECTION 15. Section 39A of said chapter 127, as so appearing, is hereby amended by
131131 100striking out, in line 1 , the words “restrictive housing” and inserting in place thereof the
132132 101following words:- segregated confinement other than a secure treatment unit or mental health
133133 102watch
134134 103 SECTION 16. Said section 39A of said chapter 127, as so appearing, is hereby amended
135135 104by inserting after the words “restrictive housing” in line 4 the following words:- , “disciplinary
136136 105restrictive housing or a secure adjustment unit”
137137 106 SECTION 17. Said section 39A of said chapter 127, as so appearing, is hereby amended
138138 107by striking out, in lines 12, 17, 20, 22, 34, 35, 38 and 39, the words “restrictive housing” and
139139 108inserting in place thereof the following words:- segregated confinement
140140 109 SECTION 18. Said section 39A of said chapter 127, as so appearing, is hereby amended
141141 110by striking out subsection (d) and inserting in place thereof the following subsection:- “(d) a
142142 111prisoner who is pregnant or who is in the first 8 weeks of the postpartum recovery period after
143143 112giving birth shall not be placed in segregated confinement.” 7 of 15
144144 113 SECTION 19. Said section 39A of said chapter 127, as so appearing, is hereby amended
145145 114by striking out subsection (e) and inserting in place thereof the following subsection:- (e) Persons
146146 115with permanent physical or developmental disabilities shall not be placed in segregated
147147 116confinement.
148148 117 SECTION 20. Said section 39A of said chapter 127, as so appearing, is hereby amended
149149 118by inserting after subsection (f) the following subsection:- (g) A prisoner 21 years of age or
150150 119younger or 55 years of age or older shall not be placed in segregated confinement.
151151 120 SECTION 21. Section 39B of said chapter 127, as so appearing, is hereby amended by
152152 121striking out, in lines 1, 4, 17, 34 and 35, the words “restrictive housing” and inserting in place
153153 122thereof the following words:- segregated confinement
154154 123 SECTION 22. Said section 39B of said chapter 127, as so appearing, is hereby amended
155155 124by inserting after the word “39A”, in line 4, the following words:- or subsection (a) of section
156156 12539I,
157157 126 SECTION 23. Said section 39B of said chapter 127 is hereby amended by striking from
158158 127subsection (a) numerals (iv) and (v) and inserting in place thereof:- (iv) is being held for any
159159 128other reason, every 30 days.
160160 129 SECTION 24. Said section 39B of said chapter 127, as so appearing, is hereby amended
161161 130by inserting after the words “restrictive housing” in lines 11 and 12 the following words:- ,
162162 131disciplinary restrictive housing, a secure adjustment unit or a secure treatment unit following an
163163 132allegation or finding of a disciplinary breach 8 of 15
164164 133 SECTION 25. Said section 39B of said chapter 127, as so appearing, is hereby amended
165165 134by striking out, in line 20, the word “or” and inserting in place thereof the following word:- and
166166 135 SECTION 26. Said section 39B of said chapter 127, as so appearing, is hereby amended
167167 136by inserting after the word “writing” in line 20 the following words:- and be represented by an
168168 137advocate of the prisoner’s choosing including, but not limited to, a legislator, law student,
169169 138lawyer, paralegal or other legal representative
170170 139 SECTION 27. Said section 39B of said chapter 127, as so appearing, is hereby amended
171171 140by striking out, in lines 22 and 23, the words “the evidence relied on and the reasons for the
172172 141placement decision” and inserting in place thereof the following words:- “(1) any negative
173173 142effects of segregated confinement on the prisoner and the extent to which such effects may be
174174 143impacting the prisoner’s behavior and perceived level of risk, (2) whether a reasonable
175175 144probability of safety for the prisoner and third parties could be achieved if the prisoner were
176176 145confined to general population or a less restrictive form of segregated confinement than the
177177 146prisoner has been assigned to, (3) the factual basis or bases for the placement decision, (4) a
178178 147written description of any statements made by the prisoner during the hearing and (5) attaching
179179 148all supporting records and all records submitted by the prisoner”
180180 149 SECTION 28. Said section 39B of said chapter 127, as so appearing, is hereby amended
181181 150by striking out subsection (d).
182182 151 SECTION 29. Said section 39B of said chapter 127, as so appearing, is hereby amended
183183 152by inserting after subsection (e) the following two subsections:- (f) There shall be a presumption
184184 153in favor of release to the general population at every placement review, and a prisoner may only
185185 154be retained in segregated confinement if there is clear and convincing evidence that the prisoner 9 of 15
186186 155poses an unacceptable risk in the general population as provided in subsection (a) of section 39,
187187 156documented in writing. If a prisoner is being held in segregated confinement awaiting a
188188 157disciplinary hearing or on any other awaiting action or investigation status, the prisoner shall be
189189 158reviewed every 3 days by clinical staff and they shall be returned to the general population once
190190 159clinical staff determine the prisoner no longer poses a threat of harm to themselves or others, in
191191 160no event greater than 15 days. Any time on any awaiting action status shall be credited towards
192192 161any subsequent disciplinary offense, and no disciplinary sanction shall be extended as the result
193193 162of such credit. (g) If a placement review causes a prisoner to be held in segregated confinement
194194 163for more than 90 days over a one-year period, the placement review shall constitute a final
195195 164agency decision. The prisoner may file a complaint challenging the prisoner’s placement in
196196 165segregated confinement in the superior court for the county in which the inmate is incarcerated
197197 166or otherwise being held or in Suffolk county in accordance with section 14 of chapter 30A. The
198198 167superior court shall determine if there is substantial evidence to support the determination of the
199199 168placement review. If there is substantial evidence to support the determination of the placement
200200 169review then the court shall: (1) uphold the placement in segregated confinement or (2) make
201201 170other orders the court deems consistent with justice. If there is not substantial evidence to support
202202 171the determination of the placement review then the court shall: (1) order that the prisoner shall be
203203 172housed in the general population; (2) order that the prisoner shall be housed in a less restrictive
204204 173form of segregated confinement than the prisoner is currently confined to; (3) order that the
205205 174prisoner shall be housed in the type of segregated confinement that the department assigned the
206206 175prisoner to; or (4) make other orders the court deems consistent with justice. The availability of
207207 176review under this section shall not be construed to limit any judicial remedies otherwise
208208 177available. 10 of 15
209209 178 SECTION 30. Section 39C of said chapter 127, as so appearing, is hereby amended by
210210 179striking out, in line 4, the words “restrictive housing” and inserting in place thereof the following
211211 180words:- segregated confinement
212212 181 SECTION 31. Section 39D of said chapter 127, as so appearing, is hereby amended by
213213 182striking out, in lines 2 and 3, the words “restrictive housing” and inserting in place thereof the
214214 183following words:- segregated confinement
215215 184 SECTION 32. Said section 39D of said chapter 127, as so appearing, is hereby amended
216216 185by striking out subsection (b) and inserting in place thereof the following subsection:-
217217 186 (b) The commissioner shall publish a report quarterly and provide directly to the
218218 187segregated confinement oversight committee and to the special commission to study the health
219219 188and safety of lesbian, gay, bisexual, transgender, queer and intersex prisoners in correctional
220220 189institutions, jails and houses of correction, as to each segregated confinement unit within each
221221 190state correctional facility, and every 6 months as to each segregated confinement unit within
222222 191each county correctional facility: (i) the number of prisoners as to whom a finding of serious
223223 192mental illness has been delineated by diagnosis and the number of such prisoners held for more
224224 193than 15 days; (ii) the number of prisoners who have committed suicide or committed non-lethal
225225 194acts of self-harm; (iii) the number of prisoners according to the reason for their segregated
226226 195confinement; (iv) a listing of prisoners with names redacted, including an anonymized
227227 196identification number that shall be consistent across reports, age, race, gender and ethnicity and,
228228 197if known, the voluntary self-identified sexual orientation, as defined in section 3 of chapter
229229 198151B, and gender identity, as defined in section 7 of chapter 4, of each prisoner subjected to
230230 199segregated confinement, whether the prisoner was pregnant during time spent in restrictive 11 of 15
231231 200housing, whether the prisoner has an open mental health case, the date of the prisoner’s
232232 201commitment to segregated confinement, the length of the prisoner’s disciplinary term, if
233233 202applicable and a summary of the reason for the prisoner’s commitment; (v) the number of
234234 203placement reviews conducted for each type of segregated confinement and the number of
235235 204prisoners released from each type of segregated confinement as a result of such placement
236236 205reviews; (vi) the length of original assignment to and total time served in segregated confinement
237237 206for disciplinary purposes for each prisoner released from said confinement as a result of a
238238 207placement review; (vii) the count of prisoners released to the community directly or within 30
239239 208days of release from segregated confinement; (viii) the known disabilities of every prisoner who
240240 209was placed in segregated confinement during the previous 3 months; (ix) the number of mental
241241 210health professionals who work directly with prisoners in segregated confinement; (x) the number
242242 211of transfers to outside hospitals directly from segregated confinement; (xi) such additional
243243 212information as the commissioner may determine; (xii) the number of prisoners subjected to each
244244 213type of segregated confinement; (xiii) the number of prisoners held in segregated confinement
245245 214for more than 15 days; (xiv) the number of prisoners 21 years of age or younger subjected to
246246 215each type of segregated confinement; (xv) the number of pregnant prisoners subjected to each
247247 216type of segregated confinement; (xvi) the racial and ethnic composition of prisoners subjected to
248248 217each type of segregated confinement; (xvii) the sexual orientation and gender identity
249249 218composition of prisoners subjected to each type of segregated confinement who have voluntarily
250250 219disclosed during Prison Rape Elimination Act screenings or voluntarily disclose and self-identify
251251 220at any other time during their incarceration their sexual orientation, as defined in section 3 of
252252 221chapter 151B or gender identity, as defined in section 7 of chapter 4; (xviii) the number of
253253 222prisoners subjected to multiple stays in each type of segregated confinement in a given reporting 12 of 15
254254 223period; (xix) the rate of recidivism for individuals that were subject to segregated confinement.
255255 224The information shall be published in a commonly available electronic, machine readable format.
256256 225 SECTION 33. Said section 39D of said chapter 127, as so appearing, is hereby amended
257257 226by inserting the following subsection:-
258258 227 (d) The commissioner with consultation from the administrators of county correctional
259259 228facilities, the department of public health, the department of youth services, the Fenway Institute
260260 229and input from other stakeholders shall develop policies and procedures for prisoners to
261261 230voluntarily disclose their sexual orientation or gender identity during initial intake to state and
262262 231county correctional facilities and upon placement in segregated confinement. The collection of
263263 232sexual orientation or gender identity information voluntarily provided by prisoners placed in or
264264 233currently held in segregated confinement must be collected by members of the special
265265 234commission on the health and safety of lesbian, gay, bisexual, transgender, queer and intersex
266266 235prisoners.
267267 236 SECTION 34. Section 39E of said chapter 127, as so appearing, is hereby amended by
268268 237striking out, in line 2, the words “restrictive housing” and inserting in place thereof the following
269269 238words:- segregated confinement
270270 239 SECTION 35. Section 39F of said chapter 127, as so appearing, is hereby amended by
271271 240striking out, in lines 3 and 8, the words “restrictive housing” and inserting in place thereof the
272272 241following words:- segregated confinement other than mental health watch
273273 242 SECTION 36. Said section 39F of said chapter 127, as so appearing, is hereby amended
274274 243by striking out, in line 4, the words “restrictive housing” and inserting in place thereof the
275275 244following words:- segregated confinement 13 of 15
276276 245 SECTION 37. Section 39G of said chapter 127, as so appearing, is hereby amended by
277277 246striking out, in lines 1, 26, 27, 36, 40, 41, 42, 43, 44, 45 and 47, the words “restrictive housing”
278278 247and inserting in place thereof the following words:- segregated confinement
279279 248 SECTION 38. Said section 39G of said chapter 127, as so appearing, is hereby amended
280280 249by striking out, in line 6, the word “9” and inserting in place thereof the following word:- 10
281281 250 SECTION 39. Said section 39G of said chapter 127, as so appearing, is hereby amended
282282 251by inserting after the word “designee”, in line 18, the following words:- , 1 of whom shall be an
283283 252individual who has personally experienced segregated confinement
284284 253 SECTION 40. Said section 39G of said chapter 127, as so appearing, is hereby amended
285285 254by striking out, in line 29, the word “The” and inserting in place thereof the following words:-
286286 255All members of the
287287 256 SECTION 41. Said section 39G of said chapter 127, as so appearing, is hereby amended
288288 257by inserting after the word “institutions” in lines 29 and 30, the following words:- , including for
289289 258surprise inspections,
290290 259 SECTION 42. Subsection (c) of said section 39G of said chapter 127, as so appearing, is
291291 260hereby amended by inserting after the first sentence the following four sentences:- No
292292 261restrictions shall be placed on the ability of members of the committee to speak with the public
293293 262or the press about public aspects of the committee’s work. The committee may ask the
294294 263department and sheriff’s departments to develop new data and information relating to the use of
295295 264segregated confinement. The committee shall be entitled to review nonpublic information and
296296 265records, including, but not limited to, personnel records and prisoner records. The committee 14 of 15
297297 266shall be entitled to review and obtain copies of all public information and records, including all
298298 267public information that is segregable from non-public information and records.
299299 268 SECTION 43. Said chapter 127, as so appearing, is hereby amended by inserting after
300300 269section 39H the following section:- Section 39I. (a) A prisoner may be placed on mental health
301301 270watch only if it is determined by a qualified mental health professional’s clinical judgment that
302302 271the prisoner requires observation to protect the prisoner from a risk of serious self-harm.
303303 272 (b) A prisoner who has been placed on mental health watch for more than 72 hours and
304304 273continues to require observation to protect the prisoner from a risk of serious self-harm, as
305305 274determined by a qualified mental health professional’s clinical judgment, shall receive enhanced
306306 275clinical care at a specialized hospital.
307307 276 (c) All prisoners who have been placed on mental health watch shall be fully clothed,
308308 277limited only by patient safety considerations. Clothing shall be substantially similar to that
309309 278which is worn in general population, and any limitations to clothing shall be determined only by
310310 279a qualified clinical mental health professional.
311311 280 (d) All menstruating prisoners shall be provided with appropriate personal hygiene
312312 281supplies throughout the duration of their menstrual cycle.
313313 282 (e) All prisoners who have been placed on mental health watch shall be provided a
314314 283minimum of 2 blankets of the same or of substantially similar quality to blankets provided in
315315 284general population. 15 of 15
316316 285 (f) All prisoners who have been placed on mental health watch shall be offered time out
317317 286of cell indoors or outdoors, in accordance with the prisoner's preference, at least once daily
318318 287unless contraindicated by qualified clinical mental health providers.
319319 288 SECTION 44. Chapter 127 of the General Laws is hereby amended by inserting after
320320 289section 48B the following section:-
321321 290 Section 48C: The commissioner and administrators of state prisons and county facilities
322322 291shall maximize out of cell time and opportunities for prisoner participation in education, training,
323323 292employment and all other programming including programming related to rehabilitation, health
324324 293care and substance use. All prisoners shall have the opportunity to access at least 1 hour of
325325 294programming daily at least 5 days per week. With the exception of restrictive housing and
326326 295security or operational emergencies, no prisoner shall be locked into a cell for more than 16
327327 296hours daily.
328328 297 SECTION 45: Section 48 of Chapter 127 is hereby amended by adding after the first
329329 298sentence of the second paragraph the following sentence:- Every state and county correctional
330330 299facility must have at least one general high school equivalency class available and shall ensure
331331 300access to higher education.