As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 5th year after the year in which this rule is being adopted.

The New York State Commission of Correction (hereinafter “Commission”) received formal comments from both advocacy groups and representatives of local correctional facility officers and supervisors.

Received comments expressed that the proposed regulations are inadequate in that no duration limitations were set for inmate punitive or administrative segregation. Likewise, it was opined that the proposed regulations provide correctional facility administrators “excessive discretion” in imposing punitive or administrative segregation, and that there was no outright restriction on the segregation of “vulnerable” inmate populations (e.g., adolescents, mentally ill, disabled).

Correction Law section 137(6), applicable to local correctional facilities by means of Correction Law section 500-k, permits correction officials to “keep any inmate confined in a cell or room … for such period as may be necessary for maintenance of order or discipline.” The New York State Court of Appeals has held that the Correction Law thus gives correction officials “broad discretion in the formulation and implementation of policies relating to security and to the disciplining of inmates [emphasis added].” Arteaga v. State, 72 N.Y.2d 212, 217 (1988); see also Allah v. Coughlin, 190 A.D.2d 233, 236 (3d. Dept. 1993). Administrative state agencies, such as the Commission, “can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute” being implemented. Jones v. Berman, 37 N.Y.2d 42, 53 (1975); see also McNulty v. Chinlund, 62 A.D.2d 682, 688 (3d Dept. 1978). Consequently, it has historically been the Commission’s position that the promulgation of regulations that otherwise limit the statutory authority granted exclusively to correction officials would exceed its enabling powers. Nonetheless, it is the Commission’s intention, by adopting the regulations, to ensure that determinations to confine inmates to a cell, or deprive inmates of essential services, are justified and documented, reviewed on a timely basis to assess if continuation is warranted, and reported to the Commission. Thereafter, the Commission’s ability to monitor and oversee such confinement, and the deprivations of essential inmate services, will be sufficient to identify and investigate potential abuses.

Similarly, received comments suggested regulation to provide for required programming of confined inmates during their “out-of-cell” time. It must be noted that this body of regulations applies equally to all local correctional facilities throughout the State, of various resources, from the 6-bed jail in Hamilton County to the expansive facilities of the New York City Department of Correction on Rikers Island. This, coupled with the transient inmate populations and more frequent court appearances and visitation experienced by local correctional facilities, as compared to state prisons, makes such a requirement currently impractical.

One received comment recommended careful monitoring and assessment of all segregated inmates with serious mental illness, or physical or mental disability, who are denied the presumptive four hours out-of-cell time pursuant to section 7075.4(c). The Commission is confident that the proposed requirements of 7075.4(d), that any such denial be reviewed at intervals not to exceed seven (7) days, that such review include consultation with appropriate health services staff, and that such determinations be sufficiently documented and reported to the Commission, will result in a system of appropriate monitoring and assessment.

Comment was received recommending further revision of sections 7006.7(c) and 7013.10(c) to require consultation with facility health and mental health staff upon review of an inmate’s administrative segregation pending a disciplinary hearing, and to include specific reference to a facility mental health director as a party who may disclose information to the chief administrative officer for the purpose of reviewing classification, transport and segregation decisions. The Commission finds such suggested revisions to be unnecessary, as the administrative segregation of an inmate pending a disciplinary hearing is subject to all determination, consultation and review requirements of Part 7075. Further, as currently constructed, Correction Law section 501 requires the county’s appointment of a single physician as the principal health care provider to the jail’s inmate population. Consequently, the disclosure of any inmate health information should emanate from such sole appointee’s authority.

Lastly, received comments objected that the Commission should not prohibit the use of inmate segregation, as it is a useful and necessary correctional tool to ensure the safety of the inmate population and facility staff. To this end, the commenters requested a postponement of adoption until the Commission had an opportunity to consult with various correctional officials and labor organizations. As set forth above, the regulations do not prohibit correctional officials from utilizing inmate segregation. Rather, the regulations require that such determinations to confine inmates to a cell, or deprive inmates of essential services, are made, justified and documented by the facility’s highest authority, reviewed on a timely basis to assess if continuation is warranted, and reported timely to the Commission. Since the initial regulatory proposal, members of the Commission’s administration met with officials from the New York State Sheriffs’ Association, as well as a number of county sheriffs, at which time a productive discussion of the proposed regulations, and the potential impact on facilities, was had. As a result, the Commission is confident that local correctional facility officials have had a sufficient period of time to review and assess the regulations, and Commission staff have answered, and will continue to answer, any questions and concerns.