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.