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| 4 | 4 | | |
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| 5 | 5 | | 2023 -- S 0617 |
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| 6 | 6 | | ======== |
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| 7 | 7 | | LC002357 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S TATE OF RHODE IS LAND |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- SOLITARY CONFINEMENT |
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| 16 | 16 | | REFORM ACT |
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| 17 | 17 | | Introduced By: Senators Acosta, Mack, Euer, Miller, Kallman, and Murray |
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| 18 | 18 | | Date Introduced: March 07, 2023 |
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| 19 | 19 | | Referred To: Senate Judiciary |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND 1 |
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| 24 | 24 | | GOVERNMENT" is hereby amended by adding thereto the following chapter: 2 |
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| 25 | 25 | | CHAPTER 56.4 3 |
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| 26 | 26 | | SOLITARY CONFINEMENT REFORM ACT 4 |
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| 27 | 27 | | 42-56.4-1. Legislative intent. 5 |
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| 28 | 28 | | (a) It is the policy of the State of Rhode Island that the department of corrections and the 6 |
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| 29 | 29 | | facilities it operates maintain safe, secure housing for all inmates. 7 |
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| 30 | 30 | | (b) Restrictive housing should only be used: 8 |
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| 31 | 31 | | (1) In circumstances that pose a clear and direct threat to the safety of persons or to the safe 9 |
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| 32 | 32 | | and secure operations of the facility; 10 |
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| 33 | 33 | | (2) In the absence of alternatives to restrictive housing; 11 |
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| 34 | 34 | | (3) For the shortest time possible; and 12 |
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| 35 | 35 | | (4) With the least restrictive conditions possible. 13 |
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| 36 | 36 | | 42-56.4-1. Definitions. 14 |
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| 37 | 37 | | As used in this chapter, unless the context indicates a different meaning or intent: 15 |
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| 38 | 38 | | (1) "Administrative confinement" means any status or classification, except for disciplinary 16 |
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| 39 | 39 | | confinement, for prisoners whose conduct may pose a serious threat to life, self, staff, other 17 |
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| 40 | 40 | | prisoners, or the facility's security or orderly operation. 18 |
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| 41 | 41 | | |
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| 42 | 42 | | |
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| 43 | 43 | | LC002357 - Page 2 of 13 |
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| 44 | 44 | | (2) “Basic necessities” includes weather-appropriate clothing and footwear; adequate food 1 |
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| 45 | 45 | | in compliance with medical and religious accommodations, with no more than twelve (12) hours 2 |
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| 46 | 46 | | between meals; access to drinking water and functioning sanitary fixtures; access to a shower and 3 |
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| 47 | 47 | | hygienic items; bedding; and ventilation. 4 |
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| 48 | 48 | | (3) “Cell” means any room, area or space that is primarily used for the confinement of 5 |
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| 49 | 49 | | prisoners; or any room, area or space that is less than one hundred square feet (100 sq. ft), regardless 6 |
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| 50 | 50 | | of use or purpose. Shared spaces whose primary purpose is congregate social interaction, education, 7 |
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| 51 | 51 | | programming, rehabilitation, or physical and psychological wellness, including recreation areas, 8 |
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| 52 | 52 | | classrooms, libraries, and spaces used for medical evaluation and treatment, shall not constitute 9 |
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| 53 | 53 | | “cells.” 10 |
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| 54 | 54 | | (4) "Department" means the department of corrections. 11 |
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| 55 | 55 | | (5) "Director" means the director of the department of corrections. 12 |
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| 56 | 56 | | (6) "Disciplinary confinement" means punitive confinement of a prisoner based on 13 |
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| 57 | 57 | | violation of departmental rules, whether in the general population, a specialized housing unit, or 14 |
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| 58 | 58 | | elsewhere. 15 |
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| 59 | 59 | | (7) "General population" means classification to maximum, medium, or minimum security 16 |
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| 60 | 60 | | with no restrictions placed on activities or privileges. 17 |
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| 61 | 61 | | (8) "Member of a vulnerable population" means someone who: 18 |
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| 62 | 62 | | (i) Has a serious and persistent mental illness, as defined by the department of corrections, 19 |
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| 63 | 63 | | or a psychiatric disability, as defined in § 40.1-5-2; 20 |
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| 64 | 64 | | (ii) Has a developmental disability, as defined in § 40.1-1-8.1; 21 |
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| 65 | 65 | | (iii) Is pregnant, in the postpartum period, or has recently suffered a miscarriage or 22 |
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| 66 | 66 | | terminated a pregnancy; or 23 |
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| 67 | 67 | | (iv) Has a significant auditory or visual impairment, or a serious medical condition that 24 |
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| 68 | 68 | | cannot be adequately treated in restrictive housing or which is medically contraindicated to 25 |
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| 69 | 69 | | placement in restrictive housing. 26 |
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| 70 | 70 | | (9) "Protective custody" means any form of separation from a prison's general population 27 |
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| 71 | 71 | | for prisoners requiring additional protection for their own safety. 28 |
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| 72 | 72 | | (10) "Restrictive housing" means any type of detention where a prisoner is unable to leave 29 |
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| 73 | 73 | | their room or cell for eighteen (18) hours or more in a twenty-four (24) hour period, including all 30 |
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| 74 | 74 | | forms of disciplinary confinement and administrative confinement, loss of all privileges, 31 |
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| 75 | 75 | | administrative restrictive status, or other classifications or statuses that restrict out-of-cell time to 32 |
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| 76 | 76 | | six (6) or fewer hours per day. 33 |
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| 77 | 77 | | (11) "Step-down plan" means an individualized program, developed by a coordinated, 34 |
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| 78 | 78 | | |
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| 79 | 79 | | |
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| 80 | 80 | | LC002357 - Page 3 of 13 |
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| 81 | 81 | | multidisciplinary team to include mental health, case management, and security practitioners, that 1 |
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| 82 | 82 | | describes: 2 |
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| 83 | 83 | | (i) The specific behaviors that resulted in placement in restrictive housing; 3 |
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| 84 | 84 | | (ii) The programs and services available to the prisoner to address that behavior and 4 |
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| 85 | 85 | | promote general rehabilitation; 5 |
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| 86 | 86 | | (iii) An estimated timeframe for returning to a less-restrictive classification; 6 |
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| 87 | 87 | | (iv) Incentives available in order that prisoners can earn additional privileges and an 7 |
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| 88 | 88 | | accelerated return to the general population; and 8 |
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| 89 | 89 | | (v) A schedule for regular review of the plan and the prisoner's classification. 9 |
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| 90 | 90 | | (12) “Out-of-cell” means being in a space outside of the "cell" as defined in § 42-56.4-2. 10 |
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| 91 | 91 | | 42-56.4-3. Restrictive housing, generally. 11 |
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| 92 | 92 | | (a) The department shall maximize the amount of time that each prisoner in restrictive 12 |
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| 93 | 93 | | housing spends outside of the cell by providing, as appropriate, access to recreation, education, 13 |
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| 94 | 94 | | clinically appropriate treatment therapies, skill-building activities, and social interaction with staff 14 |
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| 95 | 95 | | and other inmates. 15 |
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| 96 | 96 | | (b) Each prisoner entering restrictive housing shall be seen and assessed by a qualified 16 |
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| 97 | 97 | | mental health professional or health care professional within seventy-two (72) hours of placement 17 |
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| 98 | 98 | | and at least every fourteen (14) days thereafter. 18 |
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| 99 | 99 | | (c) For each placement in restrictive housing, the department shall document: 19 |
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| 100 | 100 | | (1) The nature of the threat to safety and security posed by the prisoner; 20 |
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| 101 | 101 | | (2) The impact any restrictions in conditions of confinement may have on their health; and 21 |
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| 102 | 102 | | (3) All alternatives that may be available to safely deal with the threat, other than restrictive 22 |
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| 103 | 103 | | housing. 23 |
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| 104 | 104 | | (d) Prisoners in restrictive housing shall have equal access to programming; personal 24 |
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| 105 | 105 | | belongings in-cell, including food, legal and reading materials; commissary; medical and mental 25 |
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| 106 | 106 | | health care; legal assistance, including law library and notary services; and basic necessities as 26 |
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| 107 | 107 | | those in the general population. If provision of any such services or belongings to an individual 27 |
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| 108 | 108 | | would create a significant and unreasonable risk to the safety and security of incarcerated persons, 28 |
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| 109 | 109 | | staff, or the facility, such services or belongings may be withheld, on an individual basis, until it 29 |
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| 110 | 110 | | reasonably appears that the risk has ended. 30 |
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| 111 | 111 | | (e) Each decision to withhold services or entitlements under subsection (d) of this section 31 |
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| 112 | 112 | | shall be meaningfully reviewed within twenty-four (24) hours, and every seven (7) days thereafter, 32 |
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| 113 | 113 | | by the facility warden, or designee, and by a qualified mental health professional. Each review shall 33 |
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| 114 | 114 | | consider the impact of continued deprivation of services or entitlements on the person's risk to 34 |
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| 115 | 115 | | |
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| 116 | 116 | | |
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| 117 | 117 | | LC002357 - Page 4 of 13 |
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| 118 | 118 | | safety and security, and the warden shall articulate in writing, with a copy provided to the 1 |
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| 119 | 119 | | incarcerated person, the specific reason why the person currently poses an unreasonable risk to 2 |
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| 120 | 120 | | safety and security and why the particular services or entitlements shall continue to be withheld. 3 |
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| 121 | 121 | | Written approval from the director shall be required for any deprivation of services or entitlements 4 |
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| 122 | 122 | | beyond thirty (30) days and every thirty (30) days thereafter. 5 |
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| 123 | 123 | | (f) No prisoner shall be denied access to programming or work assignments solely on the 6 |
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| 124 | 124 | | basis of being in restrictive housing, and the department shall offer programming to prisoners in 7 |
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| 125 | 125 | | restrictive housing that is substantially similar to programming offered to prisoners in the general 8 |
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| 126 | 126 | | population, including accommodating classwork and education in-cell. Additionally, the 9 |
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| 127 | 127 | | department shall offer prisoners in restrictive housing additional out-of-cell, trauma-informed 10 |
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| 128 | 128 | | therapeutic programming aimed at promoting personal development, addressing underlying causes 11 |
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| 129 | 129 | | of problematic behavior resulting in placement in restrictive housing, and helping prepare for 12 |
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| 130 | 130 | | discharge from restrictive housing to the general population and to the community. 13 |
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| 131 | 131 | | (g) Prisoners in restrictive housing shall receive a daily visit from the senior correctional 14 |
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| 132 | 132 | | supervisor in charge of the unit, daily visits from a qualified health care professional, and visits 15 |
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| 133 | 133 | | from members of the program staff at least weekly. 16 |
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| 134 | 134 | | (h) Prisoners shall have a meaningful opportunity to be heard before a decision is made to 17 |
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| 135 | 135 | | place them in restrictive housing, at each classification review in administrative confinement 18 |
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| 136 | 136 | | beyond sixty (60) days, and at each decision to withhold entitlements under subsection (e) of this 19 |
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| 137 | 137 | | section beyond thirty (30) days. Such a hearing or proceeding shall be considered a contested case, 20 |
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| 138 | 138 | | as defined in § 42-35-1. 21 |
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| 139 | 139 | | 42-56.4-4. Discipline -- Disciplinary confinement. 22 |
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| 140 | 140 | | (a) The department shall establish maximum penalties for each level of offense. These 23 |
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| 141 | 141 | | penalties should always include alternatives to disciplinary confinement. The maximum restrictive 24 |
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| 142 | 142 | | housing penalty for any single rule violation or any series of related rule violations shall be no more 25 |
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| 143 | 143 | | than fifteen (15) days. 26 |
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| 144 | 144 | | (b) All penalties shall be proportioned to the offense. 27 |
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| 145 | 145 | | (c) Disciplinary confinement shall only be considered for offenses involving violence, 28 |
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| 146 | 146 | | involving escape, or posing a threat to institutional safety by encouraging others to engage in such 29 |
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| 147 | 147 | | misconduct. 30 |
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| 148 | 148 | | (d) All prisoners in disciplinary confinement shall receive a minimum of two (2) hours out- 31 |
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| 149 | 149 | | of-cell each day. 32 |
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| 150 | 150 | | (e) No prisoner shall serve more than thirty (30) days in disciplinary confinement in a sixty 33 |
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| 151 | 151 | | (60) day period. 34 |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | LC002357 - Page 5 of 13 |
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| 155 | 155 | | (f) Prisoners who assert that they have been held in disciplinary confinement beyond the 1 |
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| 156 | 156 | | time limits specified in this section shall have a meaningful opportunity to be heard before the 2 |
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| 157 | 157 | | warden or the warden’s designee. Such a hearing or proceeding shall be considered a contested 3 |
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| 158 | 158 | | case. 4 |
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| 159 | 159 | | (g) No prisoner who is below age twenty-two (22), over age sixty (60), or a member of a 5 |
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| 160 | 160 | | vulnerable population shall be placed in disciplinary confinement for any period of time unless the 6 |
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| 161 | 161 | | individual presents an immediate and present danger and there is no reasonable alternative for 7 |
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| 162 | 162 | | placement. Such placement shall last only as long as necessary to find an alternative housing 8 |
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| 163 | 163 | | placement. 9 |
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| 164 | 164 | | (h) A prisoner should not be placed in restrictive housing pending investigation of a 10 |
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| 165 | 165 | | disciplinary offense unless their presence in the general population would pose a danger to 11 |
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| 166 | 166 | | themselves, staff, other prisoners, or the public. A prisoner's placement in restrictive housing 12 |
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| 167 | 167 | | pending investigation shall be reviewed within twenty-four (24) hours by the warden, or designee. 13 |
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| 168 | 168 | | No prisoner shall remain in investigative segregation for a longer period of time than the maximum 14 |
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| 169 | 169 | | term of disciplinary segregation permitted for the most serious offense charged. 15 |
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| 170 | 170 | | 42-56.4-5. Administrative confinement -- Protective custody. 16 |
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| 171 | 171 | | (a) Placement in administrative confinement is limited to individuals who pose an 17 |
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| 172 | 172 | | imminent threat to the security of the institution, shall only be considered when it serves a specific 18 |
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| 173 | 173 | | penological purpose, and shall last no longer than necessary to address the specific reason(s) for 19 |
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| 174 | 174 | | placement. 20 |
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| 175 | 175 | | (b) All prisoners in administrative confinement shall receive a minimum of four (4) hours 21 |
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| 176 | 176 | | out-of-cell each day. 22 |
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| 177 | 177 | | (c) Each prisoner in administrative confinement shall have their status reviewed by the 23 |
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| 178 | 178 | | classification board, warden, or designee, every seven (7) days for the first sixty (60) days of the 24 |
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| 179 | 179 | | prisoner's placement and at least every thirty (30) days after the first sixty (60) days. 25 |
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| 180 | 180 | | (d) The department shall create an individualized step-down plan, as defined in § 42- 56.4-26 |
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| 181 | 181 | | 2, no later than fourteen (14) days after each placement in administrative confinement. This step-27 |
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| 182 | 182 | | down plan shall be shared with the prisoner unless specifically articulable security concerns require 28 |
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| 183 | 183 | | otherwise. 29 |
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| 184 | 184 | | (e) Where possible, prisoners with serious mental illness should be diverted from 30 |
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| 185 | 185 | | administrative confinement and placed in a clinically appropriate alternative form of housing. Any 31 |
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| 186 | 186 | | prisoner with a serious mental illness placed in administrative confinement shall receive intensive, 32 |
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| 187 | 187 | | clinically appropriate mental health treatment for the entirety of the placement in administrative 33 |
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| 188 | 188 | | confinement. 34 |
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| 189 | 189 | | |
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| 190 | 190 | | |
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| 191 | 191 | | LC002357 - Page 6 of 13 |
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| 192 | 192 | | (f) No prisoner classified to protective status shall be held in conditions more restrictive 1 |
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| 193 | 193 | | than those in administrative confinement. 2 |
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| 194 | 194 | | 42-56.4-6. Transitional administrative confinement and step-down housing. 3 |
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| 195 | 195 | | (a) The department shall create a system of step-down and transitional housing and 4 |
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| 196 | 196 | | programming for prisoners who require additional assistance in transitioning from administrative 5 |
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| 197 | 197 | | confinement into the general population. 6 |
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| 198 | 198 | | (b) Conditions in transitional step-down and transitional housing shall mirror, to the extent 7 |
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| 199 | 199 | | possible, those in the general population. 8 |
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| 200 | 200 | | (c) At a minimum, prisoners in step-down and transitional housing shall receive six (6) 9 |
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| 201 | 201 | | hours of out-of-cell time each day. 10 |
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| 202 | 202 | | 42-56.4-7. Staff training. 11 |
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| 203 | 203 | | (a) The department shall provide training to employees of the department who interact with 12 |
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| 204 | 204 | | inmates concerning the following: 13 |
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| 205 | 205 | | (1) Dispute resolution methods and de-escalation and communication techniques; 14 |
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| 206 | 206 | | (2) Trauma-informed care and restorative justice; 15 |
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| 207 | 207 | | (3) The types and symptoms of mental illness; 16 |
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| 208 | 208 | | (4) Custodial needs of prisoners with mental illness; and 17 |
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| 209 | 209 | | (5) The long- and short-term psychological effects of being on administrative segregation 18 |
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| 210 | 210 | | status. 19 |
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| 211 | 211 | | (b) Within available appropriations, the department of corrections shall take measures to 20 |
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| 212 | 212 | | promote the wellness of employees of the department who interact with inmates. These measures 21 |
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| 213 | 213 | | may include, but need not be limited to: 22 |
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| 214 | 214 | | (1) Employee assistance programs; 23 |
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| 215 | 215 | | (2) Peer support programs; and 24 |
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| 216 | 216 | | (3) Stress management training. 25 |
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| 217 | 217 | | 42-56.4-8. Reporting. 26 |
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| 218 | 218 | | (a) The department of corrections shall issue a report ("annual restrictive housing report") 27 |
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| 219 | 219 | | to be made publicly available on the department's website one year after the effective date of this 28 |
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| 220 | 220 | | chapter and by January 31 of each year thereafter, indicating the following, broken out by 29 |
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| 221 | 221 | | disciplinary, administrative, and transitional confinement: 30 |
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| 222 | 222 | | (1) The number of prisoners in each institution placed in restrictive housing during the past 31 |
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| 223 | 223 | | year; 32 |
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| 224 | 224 | | (2) The nature of the infractions and behaviors leading to the use of restrictive housing; 33 |
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| 225 | 225 | | (3) The lengths of terms served in restrictive housing, including terms served consecutively 34 |
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| 226 | 226 | | |
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| 227 | 227 | | |
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| 228 | 228 | | LC002357 - Page 7 of 13 |
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| 229 | 229 | | and cumulatively; 1 |
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| 230 | 230 | | (4) The races, ethnicities, genders, and religions of all prisoners placed in restrictive 2 |
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| 231 | 231 | | housing; 3 |
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| 232 | 232 | | (5) The number of members of a vulnerable population placed in restrictive housing, by 4 |
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| 233 | 233 | | category promulgated in the definition thereof listed in § 42-56.4-2; and 5 |
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| 234 | 234 | | (6) The average weekly out-of-cell time provided to prisoners in each category of 6 |
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| 235 | 235 | | restrictive housing. 7 |
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| 236 | 236 | | (b) The restrictive housing oversight committee, as created in § 42-26-20, may require the 8 |
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| 237 | 237 | | department to publish additional information, in addition to the fields delineated by statute, in the 9 |
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| 238 | 238 | | annual restrictive housing report. 10 |
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| 239 | 239 | | 42-56.4-9. Declaratory judgment. 11 |
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| 240 | 240 | | (a) Any prisoner may bring an action for declaratory judgment in the superior court of 12 |
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| 241 | 241 | | Providence county, when it is alleged that: 13 |
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| 242 | 242 | | (1) The department of corrections or an officer thereof failed to perform a duty enjoined 14 |
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| 243 | 243 | | upon it by this chapter, or acted in violation of lawful procedure as required by this chapter; or 15 |
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| 244 | 244 | | (2) A department rule, or its threatened application, interferes with or impairs, or threatens 16 |
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| 245 | 245 | | to interfere with or impair, the legal rights or privileges of the plaintiff under this chapter or the 17 |
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| 246 | 246 | | state or federal Constitution. 18 |
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| 247 | 247 | | (b) A declaratory judgment may be rendered whether or not the plaintiff has requested the 19 |
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| 248 | 248 | | agency to pass upon the validity or applicability of the rule in question. 20 |
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| 249 | 249 | | SECTION 2. Chapter 42-26 of the General Laws entitled "Public Safety Grant 21 |
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| 250 | 250 | | Administration Office" is hereby amended by adding thereto the following section: 22 |
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| 251 | 251 | | 42-26-20. Restrictive housing oversight committee. 23 |
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| 252 | 252 | | (a) There is hereby created within the public safety grant administration office, pursuant to 24 |
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| 253 | 253 | | the provisions of § 42-26-7, the restrictive housing oversight committee ("committee") for the 25 |
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| 254 | 254 | | purpose of monitoring the use of restrictive housing at the department of corrections. 26 |
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| 255 | 255 | | (b) The committee shall consist of the following five (5) members who shall assemble 27 |
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| 256 | 256 | | annually or more often at the call of the chairperson or upon petition of a majority of its members: 28 |
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| 257 | 257 | | (1) One who has been previously sentenced to spend time in restrictive confinement, 29 |
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| 258 | 258 | | appointed by the Black, Latino, Indigenous, Asian-American and Pacific Islander Caucus of the 30 |
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| 259 | 259 | | general assembly; 31 |
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| 260 | 260 | | (2) One who has expertise in law and a demonstrated interest in advancing the rights and 32 |
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| 261 | 261 | | welfare of incarcerated persons, appointed by the speaker of the house of representatives; 33 |
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| 262 | 262 | | (3) One who has expertise in the provision of mental health care to incarcerated persons or 34 |
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| 263 | 263 | | |
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| 264 | 264 | | |
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| 265 | 265 | | LC002357 - Page 8 of 13 |
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| 266 | 266 | | formerly incarcerated persons, appointed by the president of the senate; 1 |
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| 267 | 267 | | (4) One who has a demonstrated interest in advancing the rights and welfare of incarcerated 2 |
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| 268 | 268 | | persons appointed by the governor; and 3 |
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| 269 | 269 | | (5) The director of the department of corrections, or designee. 4 |
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| 270 | 270 | | (c) A chair of the committee shall be selected by the members of the committee. 5 |
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| 271 | 271 | | (d) Of the members first appointed to the committee, two (2) members shall serve a term 6 |
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| 272 | 272 | | of two (2) years, two (2) members shall serve a term of one year, and thereafter, members shall 7 |
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| 273 | 273 | | serve a term of two (2) years. Members shall continue to serve until their successor is duly 8 |
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| 274 | 274 | | appointed and qualified. Any vacancy on the oversight committee shall be filled in the same manner 9 |
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| 275 | 275 | | as the original appointment. 10 |
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| 276 | 276 | | (e) The committee shall perform the following functions: 11 |
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| 277 | 277 | | (1) Appoint a restrictive housing ombudsperson ("ombudsperson") based on whatever 12 |
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| 278 | 278 | | procedure is determined by the committee; 13 |
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| 279 | 279 | | (2) Review and supervise the actions of the ombudsperson; 14 |
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| 280 | 280 | | (3) Meet not less than quarterly to bring matters to the ombudsperson's attention and to 15 |
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| 281 | 281 | | consult on their services, findings and recommendations; and 16 |
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| 282 | 282 | | (4) Convene semiannual public hearings to discuss the ombudsperson's services, findings 17 |
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| 283 | 283 | | and recommendations. 18 |
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| 284 | 284 | | (f) The ombudsperson shall be empowered to: 19 |
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| 285 | 285 | | (1) Receive and investigate complaints related to incarcerated persons' health, safety, 20 |
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| 286 | 286 | | welfare, and rights; 21 |
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| 287 | 287 | | (2) Identify issues within the department of corrections related to restrictive housing; 22 |
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| 288 | 288 | | (3) Ensure compliance with relevant statutes, rules and policies pertaining to restrictive 23 |
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| 289 | 289 | | housing; 24 |
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| 290 | 290 | | (4) Provide information to inmates, probationers and parolees, and their families related to 25 |
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| 291 | 291 | | restrictive housing; and 26 |
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| 292 | 292 | | (5) Promote public awareness and understanding of the rights and responsibilities of 27 |
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| 293 | 293 | | individuals in prison and conditions related to restrictive housing. 28 |
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| 294 | 294 | | (g) The ombudsperson shall conduct random biannual inspections of restrictive housing 29 |
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| 295 | 295 | | areas in each facility, including cells, recreation areas, and programming spaces, and shall visit 30 |
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| 296 | 296 | | different facilities on each inspection. Neither the committee nor the ombudsperson shall announce 31 |
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| 297 | 297 | | an inspection to any individual or entity outside of the committee before the inspection occurs. The 32 |
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| 298 | 298 | | department shall ensure full access to the facility, inmates and staff as part of these inspections 33 |
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| 299 | 299 | | consistent with this section. 34 |
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| 300 | 300 | | |
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| 301 | 301 | | |
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| 302 | 302 | | LC002357 - Page 9 of 13 |
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| 303 | 303 | | (h) All oral and written communications, and records relating to such communications 1 |
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| 304 | 304 | | between a person in the custody of the department of corrections and the ombudsperson or 2 |
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| 305 | 305 | | committee, including, but not limited to, the identity of a complainant, the details of the 3 |
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| 306 | 306 | | communications and the ombudsperson's findings shall be confidential and shall not be disclosed 4 |
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| 307 | 307 | | without the consent of such person, except that the committee or ombudsperson may disclose 5 |
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| 308 | 308 | | without the consent of such person general findings or policy recommendations based on such 6 |
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| 309 | 309 | | communications; provided no individually identifiable information is disclosed. 7 |
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| 310 | 310 | | (i) Notwithstanding any provision of the general laws concerning the confidentiality of 8 |
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| 311 | 311 | | records and information, the ombudsperson shall have access to, including the right to inspect and 9 |
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| 312 | 312 | | copy, any non-privileged records necessary to carry out their responsibilities. 10 |
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| 313 | 313 | | (j) In the performance of the responsibilities provided for in this section, the ombudsperson 11 |
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| 314 | 314 | | may communicate privately with any person in the custody of the department of corrections. Such 12 |
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| 315 | 315 | | communications shall be confidential except as provided in this section. 13 |
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| 316 | 316 | | (k) Members of the committee and ombudsperson shall meet with the governor and the 14 |
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| 317 | 317 | | director of the department of corrections at least two (2) times each year to report on the work and 15 |
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| 318 | 318 | | findings of the committee. 16 |
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| 319 | 319 | | (l) A majority of the members appointed to the committee shall constitute a quorum, which 17 |
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| 320 | 320 | | shall be necessary for the committee to conduct business. A majority vote of the members present 18 |
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| 321 | 321 | | shall be required for action of the committee. 19 |
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| 322 | 322 | | (m) The general assembly shall annually appropriate such sums as it may deem necessary 20 |
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| 323 | 323 | | for the payment of any ombudsperson's salary and for the payment of office expenses and other 21 |
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| 324 | 324 | | actual expenses incurred by the committee or any ombudsperson's in the performance of their 22 |
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| 325 | 325 | | duties; and the state controller is hereby authorized and directed to draw their orders upon the 23 |
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| 326 | 326 | | general treasurer for the payment of such sum or sums, or so much thereof, as may from time to 24 |
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| 327 | 327 | | time be required, upon receipt by them of proper vouchers approved by any ombudsperson's or 25 |
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| 328 | 328 | | committee. 26 |
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| 329 | 329 | | SECTION 3. Section 42-35-1 of the General Laws in Chapter 42-35 entitled 27 |
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| 330 | 330 | | "Administrative Procedures" is hereby amended to read as follows: 28 |
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| 331 | 331 | | 42-35-1. Definitions. 29 |
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| 332 | 332 | | As used in this chapter: 30 |
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| 333 | 333 | | (1) Except as otherwise provided herein, “agency” means a state agency, authority, board, 31 |
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| 334 | 334 | | bureau, commission, department, district, division, institution, office, officer, quasi-public agency, 32 |
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| 335 | 335 | | or other political subdivisions created by the general assembly or the governor, other than the 33 |
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| 336 | 336 | | legislature or the judiciary, that is authorized by law of this state to make rules or to determine 34 |
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| 337 | 337 | | |
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| 338 | 338 | | |
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| 339 | 339 | | LC002357 - Page 10 of 13 |
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| 340 | 340 | | contested cases. 1 |
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| 341 | 341 | | (2) “Agency action” means: 2 |
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| 342 | 342 | | (i) The whole or part of an order or rule; 3 |
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| 343 | 343 | | (ii) The failure to issue an order or rule; or 4 |
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| 344 | 344 | | (iii) An agency’s performing, or failing to perform, a duty, function, or activity or to make 5 |
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| 345 | 345 | | a determination required by law. 6 |
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| 346 | 346 | | (3) “Agency head” means the individual in whom, or one or more members of the body of 7 |
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| 347 | 347 | | individuals in which, the ultimate legal authority of an agency is vested. 8 |
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| 348 | 348 | | (4) “Agency record” means the agency rulemaking record required by § 42-35-2.3. 9 |
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| 349 | 349 | | (5) “Contested case” means a proceeding, including but not restricted to, ratemaking, price 10 |
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| 350 | 350 | | fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required 11 |
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| 351 | 351 | | by law to be determined by an agency after an opportunity for hearing. 12 |
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| 352 | 352 | | (6) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, 13 |
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| 353 | 353 | | optical, electromagnetic, or similar capabilities. 14 |
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| 354 | 354 | | (7) “Electronic record” means a record created, generated, sent, communicated, received, 15 |
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| 355 | 355 | | or stored by electronic means. 16 |
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| 356 | 356 | | (8) “Final rule” means a rule promulgated under §§ 42-35-2.6 through 42-35-2.9, an 17 |
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| 357 | 357 | | emergency rule promulgated under § 42-35-2.10, or a direct, final rule promulgated under § 42-35-18 |
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| 358 | 358 | | 2.11. 19 |
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| 359 | 359 | | (9) “Guidance document” means a record of general applicability developed by an agency 20 |
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| 360 | 360 | | which lacks the force of law but states the agency’s current approach to, or interpretation of, law 21 |
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| 361 | 361 | | or describes how and when the agency will exercise discretionary functions. The term does not 22 |
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| 362 | 362 | | include records described in subdivisions (19)(i), (ii), (iii), or (iv). 23 |
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| 363 | 363 | | (10) “Index” means a searchable list in a record of subjects and titles with page numbers, 24 |
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| 364 | 364 | | hyperlinks, or other connectors that link each index entry to the text to which it refers. 25 |
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| 365 | 365 | | (11) “License” includes the whole or part of any agency permit, certificate, approval, 26 |
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| 366 | 366 | | registration, charter, or similar form of permission required by law, but it does not include a license 27 |
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| 367 | 367 | | required solely for revenue purposes. 28 |
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| 368 | 368 | | (12) “Licensing” includes the agency process respecting the grant, denial, renewal, 29 |
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| 369 | 369 | | revocation, suspension, annulment, withdrawal, or amendment of a license. 30 |
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| 370 | 370 | | (13) “Order” means the whole or a part of a final disposition, whether affirmative, negative, 31 |
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| 371 | 371 | | injunctive, or declaratory in form, of a contested case. 32 |
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| 372 | 372 | | (14) “Party” means each person or agency named or admitted as a party, or properly 33 |
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| 373 | 373 | | seeking and entitled as of right to be admitted as a party. 34 |
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| 374 | 374 | | |
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| 375 | 375 | | |
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| 376 | 376 | | LC002357 - Page 11 of 13 |
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| 377 | 377 | | (15) “Person” means any individual, partnership, corporation, association, the department 1 |
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| 378 | 378 | | of environmental management, governmental subdivision, or public or private organization of any 2 |
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| 379 | 379 | | character other than an agency. 3 |
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| 380 | 380 | | (16) “Promulgate,” with respect to a rule, means the process of writing a new rule, or 4 |
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| 381 | 381 | | amending or repealing an existing rule. “Promulgation” has a corresponding meaning. The process 5 |
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| 382 | 382 | | of “promulgation” begins with the filing of the notice of proposed rulemaking under § 42-35-2.7 6 |
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| 383 | 383 | | and ends upon the effective date of the rule. “Promulgate” also includes the completion of the 7 |
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| 384 | 384 | | rulemaking process for emergency rules (§ 42-35-2.10) or direct final rules (§ 42-35-2.11), if 8 |
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| 385 | 385 | | applicable. 9 |
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| 386 | 386 | | (17) “Reasonable charge” means the lowest, customary charge for a service. 10 |
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| 387 | 387 | | (18) “Record” means information that is inscribed on a tangible medium or that is stored 11 |
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| 388 | 388 | | in an electronic or other medium and is retrievable in perceivable form. 12 |
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| 389 | 389 | | (19) “Rule” means the whole or a part of an agency statement of general applicability that 13 |
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| 390 | 390 | | implements, interprets, or prescribes law or policy or the organization, procedure, or practice 14 |
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| 391 | 391 | | requirements of an agency and has the force of law. The term includes the amendment or repeal of 15 |
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| 392 | 392 | | an existing rule. The term is used interchangeably in this chapter with the term “regulation.” The 16 |
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| 393 | 393 | | term does not include: 17 |
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| 394 | 394 | | (i) A statement that concerns only the internal management of an agency and which does 18 |
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| 395 | 395 | | not affect private rights or procedures available to the public. Individuals under the custody or 19 |
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| 396 | 396 | | supervision of the department of corrections shall be considered members of the public for the 20 |
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| 397 | 397 | | purposes of this chapter, except where disclosure of any rule or portion of a rule would endanger 21 |
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| 398 | 398 | | the public welfare and security, pursuant to § 38-2-2(4)(F); 22 |
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| 399 | 399 | | (ii) An intergovernmental or interagency memorandum, directive, or communication that 23 |
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| 400 | 400 | | does not affect private rights or procedures available to the public; 24 |
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| 401 | 401 | | (iii) An opinion of the attorney general, or an opinion of the ethics commission pursuant to 25 |
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| 402 | 402 | | § 36-14-11; 26 |
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| 403 | 403 | | (iv) A statement that establishes criteria or guidelines to be used by the staff of an agency 27 |
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| 404 | 404 | | in performing audits, investigations, or inspections, settling commercial disputes, negotiating 28 |
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| 405 | 405 | | commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria 29 |
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| 406 | 406 | | or guidelines would enable persons violating the law to avoid detection, facilitate disregard of 30 |
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| 407 | 407 | | requirements imposed by law, or give an improper advantage to persons that are in an adverse 31 |
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| 408 | 408 | | position to the state; 32 |
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| 409 | 409 | | (v) A form developed by an agency to implement or interpret agency law or policy; or 33 |
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| 410 | 410 | | (vi) A guidance document. 34 |
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| 411 | 411 | | |
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| 412 | 412 | | |
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| 413 | 413 | | LC002357 - Page 12 of 13 |
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| 414 | 414 | | (20) “Sign” means, with present intent, to authenticate a record: 1 |
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| 415 | 415 | | (i) To execute a tangible symbol; or 2 |
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| 416 | 416 | | (ii) To attach to or logically associate with the record an electronic symbol, sound, or 3 |
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| 417 | 417 | | process. 4 |
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| 418 | 418 | | (21) “Small business” shall have the same meanings that are provided for under 13 C.F.R., 5 |
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| 419 | 419 | | Pt. 121, as may be amended from time to time. 6 |
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| 420 | 420 | | (22) “Small business advocate” means the person appointed by the chief executive officer 7 |
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| 421 | 421 | | of the commerce corporation as provided in § 42-64-34. 8 |
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| 422 | 422 | | (23) “State register” means the publication required under chapter 8.2 of title 42. 9 |
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| 423 | 423 | | (24) “Website” means a website on the internet or other similar technology or successor 10 |
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| 424 | 424 | | technology that permits the public to search a database that archives materials required to be 11 |
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| 425 | 425 | | published or exhibited by the secretary of state or an agency under this chapter. 12 |
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| 426 | 426 | | (25) “Writing” means a record inscribed on a tangible medium. “Written” has a 13 |
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| 427 | 427 | | corresponding meaning. 14 |
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| 428 | 428 | | SECTION 4. This act shall take effect upon passage. 15 |
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| 430 | 430 | | LC002357 |
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| 432 | 432 | | |
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| 433 | 433 | | |
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| 434 | 434 | | LC002357 - Page 13 of 13 |
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| 435 | 435 | | EXPLANATION |
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| 436 | 436 | | BY THE LEGISLATIVE COUNCIL |
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| 437 | 437 | | OF |
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| 438 | 438 | | A N A C T |
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| 439 | 439 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- SOLITARY CONFINEMENT |
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| 440 | 440 | | REFORM ACT |
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| 441 | 441 | | *** |
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| 442 | 442 | | This act would establish the restrictive housing oversight committee ("committee") for the 1 |
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| 443 | 443 | | purpose of monitoring the use of restrictive housing ("solitary confinement"), as well as disciplinary 2 |
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| 444 | 444 | | and administrative confinement at the department of corrections. This act would also authorize the 3 |
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| 445 | 445 | | committee to hire an ombudsperson to assist it in its oversight duties. 4 |
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| 446 | 446 | | This act would take effect upon passage. 5 |
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| 447 | 447 | | ======== |
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| 448 | 448 | | LC002357 |
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