Tag Archives: solitary confinement

Baker undermining solitary confinement reform

By Margaret Monsell  

Last year’s criminal justice reform law tried to nudge the state toward a more humane policy on solitary confinement in the state’s prisons and jails by adding due process protections for all prisoners confined to their cells for more than 22 hours a day and creating a 12-member Restrictive Housing Oversight Committee consisting of mental health and social work professionals as well as corrections personnel to conduct an annual study of solitary confinement practices, including recommendations on ways to minimize its use. 

The Baker administration, deeply unenthusiastic about this initiative, is using the regulatory process to throttle it.  In March, the Department of Correction sidestepped the new due process protections by way of regulations confining some prisoners to their cells for 21 hours a day instead of the 22 hours referenced in the statute. Problem largely solved.  

And in mid-June, the Department of Correction issued regulations governing the Restrictive Housing Oversight Committee that will certainly impair its ability to carry out its mission. Despite statutory language giving committee members “access to all correctional institutions,” the regulations require advance approval from the institution superintendent before any visit, prohibit a quorum or more of committee members from visiting the same institution at the same time, and apply all the rules governing visitation generally to committee members as well, making them, for example, subject to searches for weapons and contraband and to having their visits terminated at the discretion of corrections staff.

The committee must also obtain a written release from every inmate before reviewing any medical, criminal history, or other information the institution has about that inmate. While this requirement may serve the inmates’ privacy interests, it also provides corrections staff with a list of the inmates who have cooperated with the committee’s inquiries, intelligence that inmates might reasonably believe would lead to retaliatory punishment.    

In addition to these constraints on the ability of committee members to gather information, the regulations also forbid them from making “any statement(s) to the public or the press about any matters pending before the Committee, unless approved by the Chair of the Committee to do so” (the chair of the committee is the governor’s secretary of public safety). 

What constitutes a “matter pending before the Committee” remains undefined in the regulations, but presumably it includes the subjects the committee is required to address in its annual report, such as the criteria for placing an inmate in restrictive housing and the effect of restrictive housing on prison safety. In the absence of the chair’s approval, members would be unable to share their experiences and findings with anyone, including the Legislature, which established the committee for the purpose of its own edification. 

The Department of Correction put these regulations forward on an emergency basis, which means that they’re effective immediately and that the agency may dispense with the usual period between the announcement of a proposed new regulation and its adoption, during which time it is required to receive and consider public comments. (The solitary confinement regulations issued in March were also emergency regulations).

 Although they’re effective immediately, emergency regulations are of limited duration. These expire at the end of August. Maybe before then, the Legislature, the public, and the press can convince the Baker administration that, unlike these emergency regulations, permanent ones must reflect the fact that solitary confinement policy is not exclusively an executive branch prerogative. 

Margaret Monsell is an attorney practicing in the Boston area.

A landmark decision on 50th year remembrance of Martin Luther King

Great news!  Yesterday the state Senate voted unanimously for the conference committee

end mass incarceration; MLK legacy; bail reform; felony threshold

Martin Luther King Jr was honored yesterday by the Mass. Statehouse when it passed its Omnibus Bill to reform the commonwealth’s justice and corrections systems. The bill is awaiting action by Gov. Charlie Baker.

version of the criminal justice omnibus bill, and then the House voted for it 148-5.  This is fabulous!  Thank you to everyone who helped make this happen.

The next step is to get Gov. Baker to sign the bill — not send it back with amendments.
Please contact Gov. Baker in whichever of the following ways you prefer, ask him to sign the criminal justice omnibus bill without amendments, and perhaps include 1-2 sentences about why this bill is important to you (either particular provisions you care about, or that it will promote justice and compassion and true public safety, or whatever feels right to you):
+  Call his office at 617-725-4005
+  Use the webform at http://www.mass.gov/governor/constituent-services/contact-governor-office/  (ignore the “old website” warning)
+  Email his Legislative Director Kaitlyn Sprague at Kaitlyn.Sprague@state.ma.us or constituent serivices director Mindy D’Arbeloff at mindy.darbeloff@state.ma.us
+  Tweet @CharlieBakerMA
Also — Passing a bill doesn’t mean we’re done!  Laws matter, but what people are doing matters too.
The Mass Bail Fund and What a Difference a DA Makes campaign are seeking court watchers — people who get some training, commit to going to a courthouse at least three mornings in three months, and collect information that will help hold judges and prosecutors accountable.
No experience is necessary.  Some of the people receiving this email have had altogether too much experience with courtrooms, while for others this is an excellent opportunity to learn and grow personally while helping the movement.  Everyone is welcome!
The Suffolk County training will be this Sunday, April 84-6:30 p.m. at the First Baptist Church (633 Centre Street in Jamaica Plain).  Trainings for Plymouth, Hampton, and Essex Counties are scheduled for April 22May 6, and May 20.  If you live in Middlesex County, which is not one of the counties we’re focusing on, please consider helping out in Suffolk, Essex, or Worcester County.  You don’t have to attend the training in the same county where you do your court watching.
If you have some mornings free and can help in this way, please learn more and register at www.courtwatchma.org .
And may we all help keep alive Rev. Dr. Martin Luther King’s vision of a world where people have quelled the triple evils of racism, militarism, and excessive materialism, and everyone has justice, peace, and the material and spiritual foundations of a good life.
Lori Kenschaft 

14 KEY Amendments & sponsors to H 4011

For all tireless justice and corrections systems advocates, H 4011, An Act to Reform Criminal Justice, is poised to be debated by the Mass. House of Representatives Nov. 12, 13, 14. Here are the latest amendments EMIT is advocating for. You can copy and paste and email to your state rep. Find your state rep here. 

NOW IS THE TIME to email your state rep! Don’t wait. We expect legislators to finalize it by Nov. 17.  Even if you’ve previously contacted your rep, the amendments and sponsors are NEW. Encourage him/her to co-sponsor & support them.

Dear Rep ___,
As your constituent, I urge you to vote for H4011, and to co-sponsor and advocate for the following amendments, to rebuild lives, prevent incarceration, and save money. Justice reform is bi-partisan and the Omnibus Bill offers a huge opportunity for all of us.
These amendments would enhance the bill significantly:

• Felony larceny threshold – Rep. Linsky:  Taise the level of what constitutes a felony to $1,500 — the level it would almost be if the threshold had kept up with inflation;

• Fines and Fees – Rep. Keefe:  Eliminate parole fees, and also public counsel fees for people who are indigent;

• Justice reinvestment — Rep. O’Day:  Track the savings generated from reducing the prison population, and reinvest half of it in job training, job placement, and other supports to further reduce unemployment and recidivism;

• Juvenile diversion — Rep. Cahill:  Allow statewide pre-arraignment diversion for young people;

• Juvenile expungement — Reps. Dykema, Khan and Decker:  Strengthen the House bill’s expungement provisions;  Rep. Khan is filing an amendment to allow some juvenile records to be sealed in 4 years (rather than 10);

• Mandatory minimums #1 – Reps. Carvalho and Keefe:  Repeal mandatory minimums for all non-violent drug sentences;

• Mandatory minimums #2 – Reps. Carvalho and Keefe:  Repeal the “school zone” mandatory minimum;

• Medical parole #1 — Rep. Connolly:  Make people with permanent cognitive incapacitation (think dementia) eligible, in keeping with the Senate bill;

• Medical parole #2 — Rep. Connolly:  Lengthen the terminal prognosis from 12 months to 18 months, in keeping with the Senate bill;

• Raise the age of juvenile jurisdiction — Rep. Carvalho and Rep. Khan:  Raise the lower age to 12 and the upper age to 19 ;


• Romeo & Juliet — Rep. Lewis:  Don’t prosecute teens who are close in age and engage in consensual sexual activity;

• School-based arrests — Rep. Vega:  Reduce school-based arrests for adolescent misbehavior like disorderly conduct and disturbing an assembly;

• Shackling — Rep. Khan:  Codify current court policy prohibiting indiscriminate shackling of juveniles;
• Solitary — Rep. Balser:  Further limit the use of solitary confinement and provide data on its use.
Your name & address

New York State Agrees to Overhaul Solitary Confinement in Prisons

Courtesy of the New York Times
New York has agreed to a major overhaul in the way solitary confinement is administered in the state’s prisons, with the goal of significantly reducing the number of inmates held in isolation, cutting the maximum length of stay and improving their living conditions.
The five­ year, $62 million agreement, announced on Wednesday, is the result of a lawsuit brought by the New York Civil Liberties Union over the treatment of inmates in solitary confinement in the prisons. For 23 hours a day, 4,000 inmates are locked in concrete 6­by­10 ­foot cells, sometimes for years, with little if any human contact, no access to rehabilitative programs and a diet that can be restricted to a foul­tasting brick of bread and potatoes known at the prisons as “the loaf.”
The changes are expected to reduce the number of inmates in solitary confinement by at least a quarter and usher in a range of reforms, including limiting the time served to three months in most cases and providing the prisoners with certain privileges, like monthly phone calls and group recreation.
“This is the end hopefully of an era where people are just thrown into the box for an unlimited amount of time on the whim of a corrections officer,” said Taylor Pendergrass, the civil liberties union’s lead counsel on the case. “This will not be the end of the road for solitary confinement reform, but we really think it’s a watershed moment.”
The legal settlement caps three years of negotiations between the civil liberties union and the administration of Gov. Andrew M. Cuomo, and comes at a time of intense scrutiny of the state prison system.
In June, two murderers escaped from the Clinton Correctional Facility in Dannemora, N.Y., setting off a nationwide manhunt that cost millions of dollars. But it also exposed serious dysfunction within the State Department of Corrections and Community Supervision that has been documented in a series of articles by The New York Times and The Marshall Project, a nonprofit news organization.
While states like Washington and Colorado have gone further in curbing the use of solitary confinement, both the civil liberties union and the governor’s office say the New York settlement is historic, given the size of the corrections system — it encompasses 54 prisons that hold nearly 60,000 inmates — and how much there was to do after decades of neglect.
“I think this agreement is radical and groundbreaking in ways that we couldn’t anticipate 10 years ago,” Alphonso B. David, the governor’s chief counsel, said. Mr. David said Mr. Cuomo saw the lawsuit as an opportunity to make New York prisons a model for the country.
Even though both sides say they are dedicated to a sweeping reform effort, there are still significant obstacles. Almost two years ago, the state agreed to an interim settlement that eliminated the use of solitary confinement for pregnant women, most developmentally disabled inmates and any prisoner under age 18.
And yet during that time, the number of inmates in solitary confinement has increased. Officials attributed the rise in part to the escape in June, which prompted a crackdown throughout the prison system. More than 50 people have been in solitary confinement for longer than five years. At the same time, the average length of stay in isolation has gone down, to 190 days as of December from 225 days last year.
Another major question is whether the corrections officers’ union, which has great power in the prisons, will go along with the settlement. After the interim settlement was adopted in 2014, the union filed a lawsuit, which is still pending, challenging many of the new policies. Officials with the corrections officers’ union said they had not been included in the negotiations nor had they yet reviewed the details of the settlement.
“Our state’s disciplinary confinement policies have evolved over decades of experience, and it is simply wrong to unilaterally take the tools away from law enforcement officers who face dangerous situations on a daily basis,” the union said in a written statement.
The settlement agreement, which also involved the law firm Morrison & Foerster and Alex Reinert, a professor from Cardozo Law School, must still be approved by the judge in the case, Shira A. Scheindlin, of Federal District Court in Manhattan. The agreement establishes a maximum sentence of three months for most disciplinary violations, except assaults, and 30 days for almost any prisoner who has committed a nonviolent infraction for the first time.
Isolation will no longer be imposed for first­ time violations for drug use or possession, which in the past accounted for as much as one­ fifth of the solitary population. The number of infractions punishable by solitary confinement will be cut in half, and violations that once gave corrections officers wide discretion to impose long sentences, such as “disobeying orders,” will now have a maximum of 30 days.
Though conditions will improve under the settlement, privileges for the inmates in isolation will still be highly restricted. For the first time, according to the civil liberties union, inmates will be able to make telephone calls, but only once every 30 days for those in long­ term isolation.
The corrections department will also begin a pilot program to provide offline tablet computers to inmates, but there are 30 for the entire state system. In the past, inmates in solitary confinement were given one hour of recreation a day, which they spent alone in a chain-­linked cage. Under the settlement, they will be allowed to leave their cells and spend their recreation time with others on the solitary block for two hours, three times a week. They will also have greater access to reading materials and be allowed to hang curtains in front of their toilets for privacy. And the settlement prohibits prison guards from using food as a punishment.
“I think it’s symbolic, but I think it will have a significant impact throughout the prison system,” Mr. David said. “We will eliminate the loaf.” Donna Lieberman, the executive director of the civil liberties union, described it as “notorious,” “indigestible” and “worse than not eating at all.”
Section IX, Article D of the agreement says the corrections department has three months to phase out the loaf and replace it with “a nutritious, calorie sufficient  and palatable alternative meal composed of regular food.” A report by the civil liberties union called “Boxed In,” which was published in connection with the lawsuit, cited studies that found half of the inmates in solitary confinement were seriously mentally ill; solitary inmates accounted for 34 percent of all suicides in the state prison population; and those in isolation were disproportionately African ­American.
Tonja Fenton, a plaintiff in the lawsuit who wrote her original legal complaint in pencil from her cell, spent three years in solitary confinement. “I was locked up in a cage and forgotten,” Ms. Fenton, who has since been released, said during a conference call on Wednesday. “You don’t hear any other voices, you speak out loud just to hear yourself. You forget what it’s like to be human.”
According to the report, each year about 2,000 inmates are released directly from solitary confinement into the community without receiving any transitional support. The settlement agreement aims to change that by creating “step­down” programs, which will provide mental health counseling, job training, education and drug treatment at several prisons including Southport Correctional Facility, near New York’s border with Pennsylvania, which houses only inmates in solitary confinement.
A monitor chosen by the civil liberties union will be able to inspect the prisons to ensure compliance, and the corrections department will be required to publish quarterly status reports to its website. The civil liberties union praised the Cuomo administration for its “extraordinary effort” to work out an agreement.
“No prison system of this size has ever taken on such sweeping and comprehensive reforms to solitary confinement at one time,” said Anthony D. Romero, the executive director of the American Civil Liberties Union. “And if it complies with all the terms within the time frame, New York will undergo an unprecedented transformation.” Correction: December 16, 2015