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The 191st General Court of the Commonwealth of Massachusetts

Section 39A: Restrictive housing; prohibitions on placement of certain prisoners in restrictive housing

Section 39A. (a) A prisoner shall not be held in restrictive housing if the prisoner has a serious mental illness or a finding has been made, pursuant to subsections (c) or (d) of section 39 or otherwise, that restrictive housing is clinically contraindicated unless, not later than 72 hours after the finding, the commissioner, the sheriff or a designee of the commissioner or sheriff certifies in writing: (i) the reason why the prisoner may not be safely held in the general population; (ii) that there is no available placement in a secure treatment unit; (iii) that efforts are being undertaken to find appropriate housing and the status of the efforts; and (iv) the anticipated time frame for resolution. A copy of the written certification shall be provided to the prisoner. A prisoner in restrictive housing shall be offered additional mental health treatment in accordance with clinical standards adopted by the department of correction.

(b) If a prisoner needs to be separated from general population to protect the prisoner from harm by others, the prisoner shall not be placed in restrictive housing, but shall be placed in a housing unit that provides approximately the same conditions, privileges, amenities and opportunities as in general population; provided, however, that the prisoner may be placed in restrictive housing for not more than 72 hours while suitable housing is located. A prisoner shall not be held in restrictive housing to protect the prisoner from harm by others for more than 72 hours unless the commissioner, the sheriff or a designee of the commissioner or sheriff certifies in writing: (i) the reason why the prisoner may not be safely held in the general population; (ii) that there is no available placement in a unit comparable to general population; (iii) that efforts are being undertaken to find appropriate housing and the status of the efforts; and (iv) the anticipated time frame for resolution. A copy of the written certification shall be provided to the prisoner.

(c) The fact that a prisoner is lesbian, gay, bisexual, transgender, queer or intersex or has a gender identity or expression or sexual orientation uncommon in general population shall not be grounds for placement in restrictive housing.

(d) A pregnant inmate shall not be placed in restrictive housing.

(e) The department shall promulgate regulations regarding the placement or prohibition of placement of persons with permanent physical disabilities in restrictive housing.

(f) A prisoner shall not be confined to restrictive housing except pursuant to section 39 or this section.