(5) confinement to a cell, room, or in special housing, as that term is defined in section 7013.2(h) of this Title, for a period consistent with the facility rules of inmate conduct for the particular offense(s), subject to the provisions of section 7075.4 of this Title, provided that:

(i) no incarcerated individual known by security, health or mental health personnel to be pregnant, within eight (8) weeks of delivery or pregnancy outcome, having a mental or physical disability, or having a serious mental illness shall be confined in special housing;

(ii) an incarcerated individual shall only be sanctioned to confinement in special housing for behavior that violates rules of inmate conduct and poses an unreasonable risk to the health, safety or security of staff, incarcerated individuals, or facility security by: causing or attempting to cause injury or death to another person or making a credible threat of such injury or death; engaging in a sexual act, or compelling or attempting to compel another person to engage in a sexual act; coercing another, by force or threat of force, to violate any rule; leading, organizing, inciting, or attempting to cause a riot, insurrection, strike, or other serious disturbance that may result in physical harm to another person, significant property damage or significant interference with facility operations; procuring, possessing, brandishing or using a weapon that poses a threat to the health, safety, or security of staff, incarcerated individuals, or security of the facility; procuring, possessing, using or distributing dangerous contraband that poses a threat to the health, safety, or security of staff, incarcerated individuals, or security of the facility; escaping, attempting to escape or facilitating an escape from a facility, or absconding or attempting to abscond outside of a facility, or; engaging in conduct constituting a felony under the Penal Law; and

(iii) no incarcerated individual shall be sanctioned to confinement in special housing for longer than necessary and; effective on and after April 1, 2021, for no more than ninety (90) days; effective on and after October 1, 2021, for no more than sixty (60) days and; effective on and after April 1, 2022, for no more than thirty (30) days;

Subdivision (h) of section 7013.2 of Title 9 is amended to read as follows:

(h) Special housing shall [include, but not be limited to: admissions/orientation housing; medical/mental health observation; and] mean any incarcerated individual housing area, or subdivision thereof, used principally for punitive or administrative segregation.

Paragraph (1) of subdivision (a) of section 7013.6 of Title 9 is amended to read as follows:

(1) special housing[as defined in section 7013.2(h) of this Part], admissions/orientation housing, and medical/mental health observation, provided minors and adults are separately grouped to prevent access between such classification categories;

Subdivision (b) of section 7013.6 of Title 9 is amended to read as follows:

(b) Males and females shall not be commingled in areas designated as special housing, admissions/orientation housing, or medical/mental health observation [as defined in section 7013.2(h) of this Part].

Section 7040.2 of Title 9 is amended to read as follows:

As used in this Part, the [term] following definitions shall apply to the terms listed below:

(a) [m]Maximum facility capacity shall mean the greatest number of [inmates] incarcerated individuals that may be confined at one time within each correctional facility, as formulated by the commission pursuant to the requirements of this Part.

Subdivision (b) of section 7040.7 of Title 9 is amended to read as follows:

(b) In formulating the maximum facility capacity of a facility, the commission shall determine the maximum number of [inmates] incarcerated individuals that can be housed in each individual and multiple occupancy housing unit pursuant to the requirements of this Part. Such determination shall be based on the following:

(1) the number of properly equipped individual occupancy housing units, including the number of properly equipped individual occupancy housing units in housing areas designated for admissions/orientation, medical and mental health observation, and [any other] special housing[units];

(2) the number of properly equipped multiple occupancy housing units, including the number of properly equipped multiple occupancy housing units in housing areas designated for admissions/orientation, medical and mental health observation, and [any other] special housing[units]; and

(3) the facility's ability to provide required programs and services and to comply with other rules and regulations of this Chapter which are related to facility capacity.

Paragraph (4) of subdivision (a) of section 7041.2 of Title 9 is amended to read as follows:

(4) special housing, admissions/orientation housing, and medical/mental health observation [area] supervision;

Paragraph (11) of subdivision (c) of section 7070.3 of Title 9 is amended to read as follows:

(11) pursuant to the requirements of section 7070.7(a) and (b) of this Part, provision of educational services to eligible youth confined in special housing, admissions/orientation housing, and medical/mental health observation units; and

Subdivision (a) of section 7070.7 of Title 9 is amended to read as follows:

(a) Eligible youth confined in special housing, admissions/orientation housing, and medical/mental health observation units shall not be denied access to educational services solely on the basis of their classification status.

A new subdivision (h) of section 7075.2 of Title 9 is added to read as follows:

A new subdivision (i) of section 7075.2 of Title 9 is added to read as follows:

A new subdivision (j) of section 7075.2 of Title 9 is added to read as follows:

Subdivision (b) of section 7075.4 is amended to read as follows:

(b) Absent exigent circumstances, no [inmate] incarcerated individual shall be confined in any housing unit, cell, room or other area of the facility that is not listed as appropriate housing on the maximum facility capacity formulation, issued by the commission pursuant to section 7040.7 of this Part. Additionally, no facility shall operate an incarcerated individual housing area, or subdivision thereof, for special housing unless it is specifically designated for such use on the maximum facility capacity formulation, issued by the commission pursuant to section 7040.7 of this Part.

New subdivisions (g), (h), (i), (j) and (k) of section 7075.4 of Title 9 are added to read as follows:

The New York State Commission of Correction ("Commission") seeks to amend paragraph (5) of subdivision (a) of section 7006.9, amend subdivision (h) of section 7013.2, amend paragraph (1) of subdivision (a) of section 7013.6, amend subdivision (b) of section 7013.6, amend section 7040.2, amend subdivision (b) of section 7040.7, amend paragraph (4) of subdivision (a) of section 7041.2, amend paragraph (11) of subdivision (c) of section 7070.3, amend subdivision (a) of section 7070.7, add a new subdivision (h) of section 7075.2, add a new subdivision (i) of section 7075.2, add a new subdivision (j) of section 7075.2, amend subdivision (b) of section 7075.4, and add new subdivisions (g), (h), (i), (j) and (k) of section 7075.4 of Title 9 NYCRR.

1. Statutory authority:

Subdivision (6) of section 45 of the Correction Law authorizes the Commission to promulgate rules and regulations establishing minimum standards for the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all persons confined in the local correctional facilities of New York State. Subdivision (15) of section 45 of the Correction Law allows the Commission to adopt, amend or rescind such rules and regulations as may be necessary or convenient to the performance of its functions, powers and duties.

2. Legislative objectives:

By vesting the Commission with this rulemaking and oversight authority, the Legislature intended the Commission to enact regulations that establish allowable uses and duration of disciplinary and administrative segregation in special housing.

3. Needs and benefits:

Numerous studies have concluded that subjecting inmates to solitary confinement for all but one or two hours a day, absent substantial human contact, can result in significant harm to such inmates’ psychological, social, physical and developmental wellbeing. Furthermore, such confinement can prove even more devastating on the vulnerable inmate population, such as pregnant women and people with disabilities.

While New York State Correction Law requires the Commission to promulgate rules and regulations establishing minimum standards for the “care, custody, correction, treatment, supervision, [and] discipline” of those person confined in correctional facilities, current local correctional facility regulations do not provide allowable uses and duration of disciplinary and administrative segregation in special housing, nor is the segregation of vulnerable inmates in special housing prohibited. While “confinement to a cell, room, or in special housing for a period consistent with facility rules of inmate conduct for the particular offense(s)” is an allowable disciplinary sanction [9 NYCRR § 7006.9(a)(5)], the only provided limitation is that any imposed punishment must be “consistent with the seriousness of the conduct prohibited” [9 NYCRR § 7006.3(b)(2)].

Recent, publicized civil rights actions, Commission field work, and formal inmate grievances appealed to the Commission’s Citizen’s Policy and Complaint Review Council have revealed instances of extended inmate segregation in county jail special housing units. Such confinement has included the solitary segregation of inmates, for insufficient reasons and prolonged periods, that likely violate the Eighth and Fourteenth Amendments of the U.S. Constitution.

As a resolution, the Commission has developed local correctional facility regulations which would prohibit the disciplinary or administrative segregation, in special housing, of any inmate that is pregnant, within eight (8) weeks of delivery or pregnancy outcome, has a mental or physical disability, or has a serious mental illness. For all others, disciplinary or administrative segregation in special housing would be allowed only for conduct that poses an unreasonable risk to the health, safety or security of staff, inmates or facility security, with the duration of such segregation eventually limited to 30 days, absent an immediate or continuing unacceptable threat.

4. Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: Minimal. Any determination by local correctional facility administrators to administratively segregate an inmate in special housing, or to continue such segregation past provided time limitations, must be articulated by the chief administrative officer in writing. Consequently, compliance with the proposed rule would result only in minimal costs associated with such recordkeeping.

b. Costs to the agency, the State and local governments for the implementation and continuation of the rule: None. The regulation does not apply to State agencies or governmental bodies. As set forth above in subdivision (a), any additional costs to local governments would be minimal.

c. This statement detailing the projected costs of the rule is based upon the Commission’s oversight and experience relative to the operation and function of a local correctional facility.

5. Local government mandates:

The regulation prohibits the disciplinary or administrative segregation, in special housing, of any local correctional facility inmate that is pregnant, within eight (8) weeks of delivery or pregnancy outcome, has a mental or physical disability, or has a serious mental illness. For all others, disciplinary or administrative segregation in special housing would be allowed only for conduct that poses an unreasonable risk to the health, safety or security of staff, inmates or facility security, with the duration of such segregation eventually limited to 30 days, absent an immediate or continuing unacceptable threat.

6. Paperwork:

As set forth above, any determination by local correctional facility administrators to administratively segregate an inmate in special housing, or to continue such segregation past provided time limitations, must be articulated by the chief administrative officer in writing.

7. Duplication:

The rule does not duplicate any existing State or Federal requirement.

8. Alternatives:

The alternative, not promulgating regulations to prohibit the segregation of vulnerable inmates and standardize allowable uses and duration of special housing segregation, was dismissed by the Commission due to the agency’s belief that such measures are necessary ensure for the health and welfare of local correctional facility inmates.

9. Federal standards:

There are no applicable minimum standards of the federal government.

10. Compliance schedule:

Each local correctional facility is expected to be able to achieve compliance with the proposed rule once effective, which shall occur within six (6) months upon publication of a Notice of Adoption in the State Register.

A regulatory flexibility analysis is not required pursuant to subdivision three of section 202-b of the State Administrative Procedure Act because the rule does not impose an adverse economic impact on small businesses or local governments. The proposed rule seeks only to establish local correctional facility regulations prohibiting the segregation of vulnerable inmates in special housing, and to otherwise standardize the allowable uses and duration of disciplinary and administrative segregation in special housing. Serving only to set reasonable limitations on existing local correctional facility practices, the proposed regulations will not have an adverse impact on small businesses or local governments, nor impose any additional significant reporting, recordkeeping, or other compliance requirements on small businesses or local governments.

A rural area flexibility analysis is not required pursuant to subdivision four of section 202-bb of the State Administrative Procedure Act because the rule does not impose an adverse impact on rural areas. The proposed rule seeks only to establish local correctional facility regulations prohibiting the segregation of vulnerable inmates in special housing, and to otherwise standardize the allowable uses and duration of disciplinary and administrative segregation in special housing. Serving only to set reasonable limitations on existing local correctional facility practices, the proposed regulations will not impose any additional significant recordkeeping, reporting, or other compliance requirements on private or public entities in rural areas.

A job impact statement is not required pursuant to subdivision two of section 201-a of the State Administrative Procedure Act because the rule will not have a substantial adverse impact on jobs and employment opportunities, as apparent from its nature and purpose. The proposed rule seeks only to establish local correctional facility regulations prohibiting the segregation of vulnerable inmates in special housing, and to otherwise standardize the allowable uses and duration of disciplinary and administrative segregation in special housing. As such, there will be no impact on jobs and employment opportunities.