Bill S.1306

SENATE DOCKET, NO. 1652 FILED ON: 1/20/2017

SENATE . . . . . . . . . . . . . . No. 1306

By Mr. Eldridge, a petition (accompanied by bill, Senate, No. 1306) of James B. Eldridge, Ruth B. Balser, Dylan Fernandes, Marjorie C. Decker and other members of the General Court for legislation to reduce recidivism, curbing unnecessary spending, and ensuring appropriate use of segregation. Public Safety and Homeland Security.

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act reducing recidivism, curbing unnecessary spending, and ensuring appropriate use of segregation.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of chapter 127 of the General Laws is hereby amended by inserting the following definitions:-

“Disciplinary segregation”, the segregation of a prisoner in a segregation unit or other housing unit, for the purpose of disciplining the prisoner.

“Non-disciplinary segregation”, the segregation of a prisoner who poses a substantial threat to the safety of others or to the safe and secure operation of the facility. Non-disciplinary segregation includes all forms of segregation except disciplinary segregation.

“Non-disciplinary segregation board”, a board appointed by the commissioner for a definite or indefinite term and consisting of three members, one of whom the commissioner shall designate as chairperson. Once appointed, the board is empowered to recommend a prisoner for placement in non-disciplinary segregation. The board may be the same as the DSU Board, as defined by 103 CMR 421.06, or a separate body.

“Segregation”, a housing placement where a prisoner is confined to a cell for at least 22 hours per day.

“Serious mental illness”, (1) A current diagnosis or recent significant history of one or more of the following disorders described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders: (i) schizophrenia and other psychotic disorders; (ii) major depressive disorders; or (iii) bipolar disorders, all types; for purposes of this definition “Recent significant history” shall be defined as a diagnosis specified subsection (1) upon discharge within the past 3 years from an inpatient psychiatric hospital or other correctional facility.

(2) A diagnosis of one or more of the following disorders, as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders: (i) a neurodevelopmental disorder, dementia or other cognitive disorder; (ii) any disorder commonly characterized by breaks with reality, or perceptions of reality; or (iii) a severe personality disorder that is manifested by episodes of psychosis or depression;

(3) A diagnosis of one or more of the following disorders, as described in the most recent edition of the Diagnostic and Statistical Mental Disorders that manifests with episodes of psychosis or depression: (i) anxiety disorders, all types; (ii) trauma and stressor related disorders; or (iii) severe personality disorders; or

(4) A finding that the prisoner is at serious risk of substantially deteriorating mentally or emotionally while confined in segregation, or already has so deteriorated while confined in segregation, such that diversion or removal is deemed to be clinically appropriate by a qualified mental health professional.

SECTION 2. Chapter 127 of the General Laws is hereby amended by striking out section 39 and inserting in place thereof the following section:

Section 39. Segregation units; segregation; facilities.

(a) Subject to the requirements of section 39A, section 39B, section 40, and section 41 of this chapter, the superintendent of any correctional institution of the commonwealth or the administrator of any county correctional facility, may authorize the confinement in a segregation unit within any correctional institution of the commonwealth, of any prisoner whose continued retention in the general institution population poses a substantial threat: (1) to the safety of others; (2) of damaging or destroying property; or (3) to the operation of a state correctional facility. Segregation should be for the briefest term and under the least restrictive conditions practicable and consistent with the rationale for placement.

(b) A prisoner may be held in non-disciplinary segregation only if: (1) Pursuant to section 39B, he or she has been found to have committed, while incarcerated within the last five years, (i) an act of violence that resulted or was likely to result in serious injury or death to another, or occurred in connection with an act of non-consensual sex; (ii) two or more discrete acts which cause serious disruption of prison operations; or (iii) an escape, attempted escape, or conspiracy to escape from within a security perimeter or custody, or both; and (2) Pursuant to section 39B, he or she has been determined to pose an immediate and significant threat to the safety of other prisoners or to the orderly running of the institution.

(c) All segregation units shall provide regular meals, fully furnished cells, adequate sanitation facilities, adequate clothing, at least one hour per day of exercise and recreation, outside if weather permits, rights of visitation and communication by those properly authorized, and such other privileges as may be established by the superintendent or administrator. Under the supervision of the department of mental health, all prisoners confined to segregation units shall be given periodic mental and psychiatric examinations, and shall receive such medical and psychiatric treatment as may be clinically indicated.

(d) Segregation units that house prisoners in non-disciplinary segregation should provide living conditions that approximate those in general population, and, at a minimum, must meet the following standards: (1) Prisoners shall be offered two hours of out-of-cell recreation 7 days per week; (2) Prisoners shall have the same right to make canteen purchases and to retain property in their cells as prisoners in the general population at the same facility, except where inconsistent with the security of the unit; (3) Prisoners shall have equal access to disability accommodations as persons in general population; provided that such accommodations shall include, but are not limited to: handicap accessible cells, wheelchairs, walkers, prosthetic devices, canes, eyeglasses, hearing aids, orthopedic shoes, mattresses and cushioning, and special clothing; (4) Prisoners shall have the same access to vocational, educational and rehabilitative programs as the general population, to the extent consistent with the safety and security of the unit; (5) Prisoners shall be offered daily showers; (6) Prisoners shall have access to a radio or television; (7) Prisoners shall be eligible for and have opportunities to receive earned good time credits pursuant to chapter 127, section 129D while in segregation.

SECTION 3. Chapter 127 is hereby amended by striking out section 39A in its entirety and inserting in place thereof the following:-

Section 39A. Segregated units; mental health screening prior to placement; prohibition on placement of inmate with serious mental illness in segregated unit

(a) Prior to placement in a segregated unit, all inmates shall be screened by a qualified mental health professional to determine whether the inmate has a serious mental illness and whether there are any acute mental health contraindications to placement in a segregated unit. The screening shall be conducted in accordance with clinical standards adopted by the department of correction.

A qualified mental health professional shall make daily rounds in each such segregated unit and may conduct an out-of-cell meeting with any inmate for whom a confidential meeting is warranted in the clinician's professional judgment. Inmates in such segregated units shall be evaluated by a qualified mental health professional in accordance with clinical standards adopted by the department of correction.”

(b) Except in exigent circumstances that would create an unacceptable risk to the safety of any person, a segregated inmate diagnosed with a serious mental illness or who is otherwise at risk of suffering substantial harm in segregated housing shall not be housed in a segregated unit and shall be placed in a secure treatment unit or returned to general population. Any such segregated inmate awaiting transfer to a secure treatment unit shall be offered additional mental health services in accordance with clinical standards adopted by the department.

(c) Except in exigent circumstances, no prisoner may be held in segregation if the prisoner is: (1) Is pregnant, is in the postpartum period, or has recently suffered a miscarriage or terminated a pregnancy; (2) Has a significant auditory or visual impairment; (3) Is 21 years of age or younger; (4) Is 65 years of age or older; (5) Has a serious medical condition which cannot effectively be treated in segregated confinement; or (6) Would not otherwise be in segregation but for the fact that they are perceived to be lesbian, gay, bisexual, transgender, or intersex.

(d) A prisoner who is excluded from segregation by this section may be held in segregation because of exigent circumstances only if, within 72 hours of the prisoner’s placement in segregation, the commissioner or designee, or sheriff or designee certifies in writing that: (1) the reason why the prisoner may not be safely held in the general population; (2) efforts that are being undertaken to find appropriate housing; and (3) the status of such efforts, and anticipated time frame for resolution. A copy must be provided to the prisoner.

(e) A prisoner who is held in segregation on an exigent basis pursuant to subsection (d) must be offered at least 3 hours per day of out-of-cell activities. If such prisoner has been excluded from segregation due to mental illness, the prisoner must be given 2 out-of-cell mental health treatment sessions per week. In no event shall a prisoner held in segregation on an exigent basis pursuant to this section be held in segregation for longer than 15 consecutive days unless the commissioner or designee, or sheriff or designee, reviews the prisoner’s status every 7 days and explains in writing what alternative placements have been considered and why no such alternative is feasible.

SECTION 4. Chapter 127 of the General Laws is hereby amended by inserting after section 39A, the following section:-

Section 39B. Non-disciplinary segregation procedural requirements; limitations.

(a) Prisoners shall be entitled to the procedural requirements set forth below before the prisoner can be held in non-disciplinary segregation, unless the superintendent of the facility where the prisoner is held or a designee certifies in writing that housing the prisoner in the general population prior to complying with these procedural requirements will pose an imminent threat to the safety and security of the prison where the prisoner is housed. If the superintendent or a designee so certifies, a hearing before a non-disciplinary segregation board shall be conducted within 5 business days of the commencement of segregation. This period may be extended up to 15 days if the commissioner or appropriate deputy commissioner certifies in writing that providing a hearing prior to transfer will pose an imminent threat to the safety and security of the prison where the prisoner is housed and that an extension of the hearing period is necessary to ensure the integrity and reliability of the hearing; only 2 such extensions are permitted.

(b) The non-disciplinary segregation board shall be appointed by the commissioner and shall consist of 3 individuals including at least 1 qualified mental health professional.

(1) Within 72 hours of the referral of a prisoner to a non-disciplinary segregation board, the prisoner shall be provided with a written referral summary that shall include the specific aspects of the prisoner’s record or other information that the board may consider, the name of any witnesses whom the presenting officer may call to testify, and copies of any documents that will be introduced. With the written referral summary, the prisoner shall be provided with request forms for making a written request for representation and for a continuance.

(2) If the prisoner wishes to be represented by an attorney or law student, have certain witnesses testify, or request a continuance he or she shall complete a written request form within forty-eight hours of receiving said forms.

(3) A prisoner shall be permitted to request that the board record the hearing and the board shall then do so. The recording shall be preserved by the Superintendent or designee and shall be accessible to the prisoner or his representative for reference and, upon request, shall be provided with a duplicate copy, which shall be provided at no charge if the prisoner is indigent.

(4) In the event that a prisoner is illiterate or non-English speaking, or when the issues presented are complex, the superintendent or a designee shall appoint a staff member to assist the prisoner in preparing and presenting the prisoner’s position at the hearing if the prisoner is unable to secure legal representation.

(5) Prisoners shall have a hearing before a non-disciplinary segregation board to determine, based on a preponderance of the evidence, that the prisoner meets the requirements of section 39(b)(1) and (2). Any non-disciplinary segregation board recommendation that the commissioner place the prisoner in non-disciplinary segregation shall be supported by a preponderance of the evidence that the prisoner meets said requirements.

(6) Within 2 days of the hearing, the non-disciplinary segregation board shall serve a written decision on the prisoner which shall contain a description of the specific evidence relied on and a particularized statement of the reasons for the decision. The statement shall explain why the placement or retention in non-disciplinary segregation is for administrative and not disciplinary reasons.

(7) The prisoner shall receive a notice stating the prisoner’s right to appeal and to submit written objections within five days of the prisoner’s receipt of the non-disciplinary segregation board’s written decision. Any appeal and objections should be addressed to the associate commissioner of programs, treatment and classification, and submitted by the prisoners or his or her representative to a staff person. The staff person shall deliver them to the correctional counselor before the close of his tour of duty. The correctional counselor shall promptly submit the name of any prisoner who has filed an appeal to the associate commissioner of programs, treatment and classification.

(8) No less than 5 and no more than 10 weekdays after the prisoner’s receipt of the board’s recommendation, the associate commissioner shall review the recommendation of the board and any appeal or objections filed by the prisoner. Upon review, the associate commissioner shall either make his or her own recommendations regarding the placement or approve the recommendation. Any written statement of objections filed by the prisoner shall be attached to the associate commissioner’s recommendation.

(9) Whether or not the prisoner has submitted an appeal, objections or statement, the commissioner or his designee shall review and act upon the recommendation of the board within 5 weekdays after review by the associate commissioner of programs, treatment and classification. The commissioner’s action shall be based upon substantial evidence in the record of the hearing. The commissioner may sustain and adopt the recommendation in its entirety, modify it, order a rehearing, or entirely reject a recommendation of placement in non-disciplinary segregation. The commissioner shall specify and explain any aspects of his decision and reasoning which are different from those of the board. If the commissioner decides that contrary to the board’s recommendation, placement in non-disciplinary segregation is warranted, the commissioner shall allow five days from receipt of the commissioner’s written decision in which to file a written statement or objections pursuant to subsection (7) above.

(c) The department shall institute a program that allows every prisoner to earn his or her way out of non-disciplinary segregation through positive behavior. The trajectory for a prisoner to earn his or her way out of such housing shall be graduated and must be less than ten days.

(1) Within 5 days of placement in non-disciplinary segregation, including any time served under section 39B(a), correctional authorities shall develop an individualized plan for the prisoner. If the prisoner has a mental health history or diagnosis, such plan shall be developed in consultation with mental health staff who are familiar with the prisoner.

(2) The plan shall include an assessment of the prisoner’s needs, a strategy for correctional authorities and, when warranted, mental health staff to assist the prisoner in meeting those needs, and a statement of the expectations for the prisoner to progress toward fewer restrictions and back to general population, including specific privileges the prisoner will receive once the prisoner meets certain benchmarks in the plan.

(3) Correctional authorities shall provide a copy of the plan to the prisoner and ensure the prisoner understands its contents. At intervals not to exceed 15 days, a team consisting of a correctional administrator and mental health clinician shall conduct and document an evaluation of each prisoner’s progress under the individualized plan. The evaluation shall consider the prisoner’s mental health status and address the extent to which the prisoner’s behavior, measured against the plan, justifies the need to maintain, increase or decrease the level of controls and restrictions in place at the time of the evaluation and recommend whether the prisoner should be returned to a lower-level custody or removed from non-disciplinary segregation.

(4) If it is determined that the prisoner has substantially complied with the plan, the prisoner shall be removed from non-disciplinary segregation and returned to a lower custody level. Otherwise, the team must determine whether the prisoner’s progress toward compliance with the individual plan warrants a reduction of restrictions, increased programming, removal from non-disciplinary segregation and/or return to lower level custody.

(5) A decision by the team to retain a prisoner in non-disciplinary segregation shall be set forth in writing and shall be reviewed by a correctional administrator and approved, rejected or modified.

(d) In no instance shall a prisoner be subjected to non-disciplinary segregation for more than 90 days unless the department conducts a subsequent hearing pursuant to section 39B(a) of this chapter by which it establishes the following: (1) by a preponderance of the evidence that the prisoner, within the previous 90 days, has committed an act which resulted in or was likely to result in serious injury or death to another; or (2) by clear and convincing evidence that there is a significant risk that the prisoner will cause physical injury to prison staff or other prisoners if removed from non-disciplinary segregation. If a decision is made to maintain the prisoner in non-disciplinary segregation for longer than 90 days, the commissioner shall set forth in writing all other alternatives that have been considered and why those alternatives have been rejected, and shall set forth a plan for transitioning the prisoner out of non-disciplinary segregation. Any prisoner subject to non-disciplinary segregation for longer than ninety days shall be entitled to a hearing at least every forty-five days thereafter with the same protections set forth herein.

(e) Subsections (a) through (d) of this section shall apply to any prisoner who is categorically excluded from placement in non-disciplinary segregation in accordance with Section 39A, but who cannot be housed in general population because they pose an immediate threat of personal injury to others.

SECTION 5. Chapter 127 of the General Laws is hereby amended by inserting after section 39B, the following section:-

Section 39C. Reentry from segregation.

(a) Any prisoner who is within 180 days of his or her mandatory release date or parole release date shall not be placed in segregation unless the commissioner or the sheriff, or his or her designee, certifies in writing, based on a preponderance of the evidence, that the presence of the prisoner in the general population would pose a serious risk of harm to others and all other less-restrictive options have been exhausted. The department or county correctional facility shall make quarterly reports as to the number of certifications made pursuant to this section 39C and the reasons therefor.

(b) Any prisoner within 180 days of his or her mandatory release date or parole release date and who is held in a segregation unit shall be offered reentry programming including but not limited to: housing assistance, assistance obtaining state and federal benefits, employment readiness training, and programming designed to help the person rebuild interpersonal relationships, such as anger management and parenting courses. The department or county correctional facility shall prepare a written reentry plan for every person in a segregation unit who is within 180 of his or her mandatory release date or parole release date.

SECTION 6. Section 40 of chapter 127 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out lines 1 through 4 in their entirety and inserting in place thereof the following:- For the enforcement of discipline, an inmate in any correctional institution of the commonwealth may, at the discretion of its superintendent, be confined, for a period not to exceed fifteen days for any one offence, to an isolation or disciplinary segregation unit, including the Departmental Disciplinary Unit.

SECTION 7. Section 41 of chapter 127 of the General Laws, as so appearing, is hereby amended by striking out lines 1 through 8 in their entirety and inserting in place thereof the following:- Subject to the requirements of Sections 39, 39A, and 39B of Chapter 127 of the Massachusetts General Laws, the superintendent or keeper of a jail or house of correction may set aside in such jail or house of correction one or more cells to be used as isolation or segregation units, and for the enforcement of discipline may confine any inmate thereto; but no prisoner shall be confined to such isolation or segregation unit for more than three days without informing the sheriff or the county commissioners thereof and of the reasons therefor; and in no case for more than ten days for any one offence.

SECTION 9. Chapter 127 of the General Laws is hereby amended by inserting after section 39C the following section:-

Section 39D. Segregation oversight.

A segregation oversight committee shall be convened to gather information regarding the use of disciplinary segregation and non-disciplinary segregation in Massachusetts correctional institutions, jails and houses of correction, to determine the impact of such confinement on prisoners, rates of violence and self-harm within correctional institutions, recidivism, and incarceration costs.

(a) The oversight committee shall consist of 7 members: 1 member from corrections appointed by the Department of Correction; 1 sheriff appointed by the sheriff’s association; 1 former judge appointed by the Chief Justice of the Supreme Judicial Court; 1 staff member from the Disability Law Center, appointed by its director; 1 staff member from Prisoners’ Legal Services, appointed by its director; 1 staff member from the Massachusetts Association for Mental Health, appointed by its director; and 1 licensed social worker, appointed by the director of National Association of Social Workers, Massachusetts chapter.

(b) The members of the oversight committee shall be provided full and unfettered access to all Massachusetts state prisons and houses of corrections, and shall be allowed to interview prisoners and staff.

(c) The oversight committee shall gather information regarding: (1) Criteria for placing a prisoner in non-disciplinary segregation; (2) Specialized training provided to staff working with prisoners in disciplinary and non-disciplinary segregation; (3) The effectiveness of step-down units to transition prisoners from disciplinary and non-disciplinary segregation to general population units or to the community; (4) The effect that reducing the use of segregation has on the rate of prison violence and self-harm by prisoners and on the State’s recidivism rates; and (5) Other relevant information as identified by the oversight committee.

(d) The oversight committee shall receive quarterly data and statistics from the department and each sheriff concerning but not limited to the following for each correctional institution, jail, and house of correction, and covering the entire quarterly period:

(1) The number of prisoners in disciplinary segregation;

(2) The disciplinary sentence length of those prisoners in disciplinary segregation;

(3) The number of prisoners in non-disciplinary segregation;

(4) The length of time those prisoners have been held in non-disciplinary segregation;

(5) The number of times a particular prisoner has been placed in segregation for that quarterly reporting period;

(6) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, designated as having serious mental illness (SMI);

(7) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, with a diagnosed mental illness;

(8) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, with a significant cognitive impairment or identified learning disability;

(9) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who have requested reasonable accommodations for a disability while in segregation;

(10) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who have received reasonable accommodations for a disability while in segregation;

(11) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who have a disability;

(12) The number of mental health professionals who work directly with prisoners in disciplinary and non-disciplinary segregation, respectively;

(13) The number of suicides and, separately, acts of non-lethal self-harm, committed by prisoners held in disciplinary and non-disciplinary segregation, respectively;

(14) The number of planned uses of force on prisoners held in disciplinary and non-disciplinary segregation, respectively;

(15) The number of times prisoners held in disciplinary and non-disciplinary segregation were placed on mental health watch and for how long they were on mental health watch status;

(16) The number of transfers to outside hospitals and psychiatric hospitals directly from disciplinary and non-disciplinary segregation, respectively;

(17) The racial composition of prisoners in disciplinary and non-disciplinary segregation, respectively;

(18) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who did not complete high school;

(19) The number of prisoners released directly from disciplinary and non-disciplinary segregation, respectively, to the community;

(20) The number of prisoners released from disciplinary and non-disciplinary segregation, respectively, within six months of release to the community;

(21) The number of prisoners removed from disciplinary and non-disciplinary segregation, respectively, due to mental decompensation;

(22) The number of prisoners in non-disciplinary segregation who are in segregation for protective custody reasons; The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who are lesbian, gay, bisexual, transgender, or intersex;

(23) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who are twenty-one years old or younger;

(24) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who are fifty-five years old or older;

(25) The number of prisoners in disciplinary and non-disciplinary segregation, respectively, who are sixty-five years old or older; and

(26) Other relevant data and statistics as identified by the oversight committee.

(e) The oversight committee shall publish a report compiling this information and data annually, with the first report being published within 1 year of the passage of this act. The oversight committee shall make said report publicly available and shall deliver copies of said report to all relevant legislative committees.

(f) The report of the segregation oversight committee shall offer recommendations geared towards limiting the number of prisoners in disciplinary and non-disciplinary segregation in Massachusetts and ensuring segregation is used as a tool of last resort in narrow, well-defined circumstances. The recommendations shall include, but are not limited to: (1) Recommendations as to how the department and each sheriff can adopt a step-down program so that all prisoners in segregation can be returned to general population within fifteen days; (2) Recommendations as to steps the department and each sheriff can take to restrict the use of segregation; (3) Recommendations as to how the department and each sheriff can ensure that prisoners experience continuity in programming during segregation; (4) Recommendations as to how the department and each sheriff can ensure that no prisoners with serious mental illness or who are otherwise considered vulnerable populations excludable from segregation under current law are placed in segregation; (5) Recommendations as to how the department and each sheriff can deliver meaningful mental health treatment to prisoners in segregation; (6) Recommendations as to how the department and each sheriff can limit the infractions resulting in segregation placement; and (7) Recommendations as to how the department and each sheriff can ensure that no prisoner is released directly from segregation to the community.

Name:	District/Address:
James B. Eldridge	Middlesex and Worcester
Ruth B. Balser	12th Middlesex	1/27/2017
Dylan Fernandes	Barnstable, Dukes and Nantucket	1/30/2017
Marjorie C. Decker	25th Middlesex	1/30/2017
Jason M. Lewis	Fifth Middlesex	1/30/2017
Jack Lewis	7th Middlesex	2/1/2017
Mary S. Keefe	15th Worcester	2/1/2017
Michael J. Barrett	Third Middlesex	2/2/2017
Elizabeth A. Malia	11th Suffolk	2/2/2017
Denise Provost	27th Middlesex	2/2/2017
Barbara A. L'Italien	Second Essex and Middlesex	2/2/2017
Paul R. Heroux	2nd Bristol	2/2/2017
Jennifer E. Benson	37th Middlesex	2/2/2017
Mike Connolly	26th Middlesex	2/2/2017
Linda Dean Campbell	15th Essex	2/2/2017
Jay R. Kaufman	15th Middlesex	2/3/2017
José F. Tosado	9th Hampden	2/3/2017
Patricia D. Jehlen	Second Middlesex	2/3/2017
Carmine L. Gentile	13th Middlesex	2/3/2017
Chris Walsh	6th Middlesex	2/3/2017