2022 -- H 7760

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LC005224

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RESTRICTIVE HOUSING AT

CORRECTIONAL FACILITIES ACT

     Introduced By: Representatives Felix, Kazarian, Williams, Alzate, Kislak, Morales,
Potter, Giraldo, Slater, and Craven

     Date Introduced: March 02, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

GOVERNMENT" is hereby amended by adding thereto the following chapter:

CHAPTER 56.4

RESTRICTIVE HOUSING AT CORRECTIONAL FACILITIES ACT

     42-56.4-1. Legislative intent.

     (a) It is the policy of the State of Rhode Island that the department of corrections and the

facilities it operates maintain safe, secure housing for all inmates.

     (b) Restrictive housing should only be used:

     (1) In circumstances that pose a clear and direct threat to the safety of persons or to the safe

and secure operations of the facility;

     (2) In the absence of alternatives to restrictive housing;

     (3) For the shortest time possible; and

     (4) With the least restrictive conditions possible.

     42-56.4-2. Definitions.

     As used in this chapter, unless the context indicates a different meaning or intent:

     (1) "Administrative confinement" means any status or classification, except for disciplinary

confinement, for prisoners whose conduct may pose a serious threat to life, self, staff, other

prisoners, or the facility's security or orderly operation.

     (2) "Basic necessities" means and includes weather-appropriate clothing and footwear;

adequate food in compliance with medical and religious accommodations, with no more than

twelve (12) hours between meals; access to drinking water and functioning sanitary fixtures; access

to a shower and hygienic items; bedding; and ventilation.

     (3) "Department" means the department of corrections.

     (4) "Director" means the director of the department of corrections.

     (5) "Disciplinary confinement" means punitive confinement of a prisoner based on

violation of departmental rules, whether in the general population, a specialized housing unit, or

elsewhere.

     (6) "General population" means classification to maximum, medium, or minimum security

with no restrictions placed on activities.

     (7) "Member of a vulnerable population" means someone who:

     (i) Is twenty-two (22) years of age or younger;

     (ii) Is fifty-five (55) years of age or older;

     (iii) Has a serious and persistent mental illness, as defined by the department of corrections,

or a mental disability, as defined in § 40.1-5-2;

     (iv) Has a developmental disability, as defined in § 40.1-1-8.1;

     (v) Is pregnant, in the postpartum period, or has recently suffered a miscarriage or

terminated a pregnancy; or

     (vi) Has a significant auditory or visual impairment, or a serious medical condition that

cannot be adequately treated in restrictive housing.

     (8) "Protective custody" means any form of separation from a prison's general population

for prisoners requiring additional protection for their own safety.

     (9) "Restrictive housing" means any type of detention that involves:

     (i) Removal of a prisoner from the general population, voluntarily or involuntarily;

     (ii) Placement in a locked room or cell, whether alone or with another prisoner; or

     (iii) The inability to leave the room or cell for the vast majority of the day, typically

eighteen (18) hours or more, to include all forms of disciplinary confinement and administrative

confinement.

     (10) "Step-down plan" means an individualized program, developed by a coordinated,

multidisciplinary team to include mental health, case management, and security practitioners, that

describes:

     (i) The specific behaviors that resulted in placement in restrictive housing;

     (ii) The programs and services available to the prisoner to address that behavior and

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promote general rehabilitation;

     (iii) An estimated timeframe for returning to a less-restrictive classification;

     (iv) Incentives available in order that prisoners can earn additional privileges and an

accelerated return to the general population; and

     (v) A schedule for regular review of the plan and the prisoner's classification.

     42-56.4-3. Restrictive housing, generally.

     (a) The department shall maximize the amount of time that each prisoner in restrictive

housing spends outside of the cell by providing, as appropriate, access to recreation, education,

clinically appropriate treatment therapies, skill-building activities, and social interaction with staff

and other inmates.

     (b) Each prisoner entering restrictive housing must be seen and assessed by a qualified

mental health professional or health care professional within seventy-two (72) hours of placement

and at least every fourteen (14) days thereafter.

     (c) For each placement in restrictive housing, the department shall document:

     (1) The nature of the threat to safety and security posed by the prisoner;

     (2) The impact any restrictions in conditions of confinement may have on their health; and

     (3) All alternatives that may be available to safely deal with the threat, other than restrictive

housing.

     (d) Prisoners in restrictive housing shall have equal access to programming; personal

belongings in cell, including food, legal and reading materials; commissary; medical and mental

health care; legal assistance, including law library and notary services; and basic necessities as

those in general population. If provision of any such service or belongings to an individual would

create a significant and unreasonable risk to the safety and security of incarcerated persons, staff,

or the facility, such services or belongings may be withheld, on an individual basis, until it

reasonably appears that the risk has ended.

     (e) Each decision to withhold services or entitlements under subsection (d) of this section

shall be meaningfully reviewed within twenty-four (24) hours, and every seven (7) days thereafter,

by the facility warden or the warden's designee and by a qualified mental health professional. Each

review must consider the impact of continued deprivation of services or entitlements on the person's

risk to safety and security, and the warden must articulate in writing, with a copy provided to the

incarcerated person, the specific reason why the person currently poses an unreasonable risk to

safety and security and why the particular services or entitlements must continue to be withheld.

Written approval from the director shall be required for any deprivation of services or entitlements

beyond three (3) days and every thirty (30) days thereafter.

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     (f) No prisoner shall be denied access to programming or work assignments solely on the

basis of being in restrictive housing, and the department must offer programming to prisoners in

restrictive housing that is substantially similar to programming offered to prisoners in the general

population, including accommodating classwork and education in-cell. Additionally, the

department must offer prisoners in restrictive housing additional out-of-cell, trauma-informed

therapeutic programming aimed at promoting personal development, addressing underlying causes

of problematic behavior resulting in placement in restrictive housing, and helping prepare for

discharge from restrictive housing to general population and to the community.

     (g) Prisoners in restrictive housing shall receive a daily visit from the senior correctional

supervisor in charge of the unit, daily visits from a qualified health care professional, and visits

from members of the program staff at least weekly.

     42-56.4-4. Discipline; Disciplinary confinement.

     (a) The department shall establish maximum penalties for each level of offense. These

penalties should always include alternatives to disciplinary confinement. The maximum restrictive

housing penalty for any single rule violation or any series of related rule violations shall be no more

than fifteen (15) days.

     (b) All penalties shall be proportioned to the offense.

     (c) Disciplinary confinement shall only be considered for offenses involving violence,

involving escape, or posing a threat to institutional safety by encouraging others to engage in such

misconduct.

     (d) All prisoners in disciplinary confinement shall receive a minimum of two (2) hours out-

of-cell each day.

     (e) No prisoner shall serve more than thirty (30) days in disciplinary confinement in a sixty

(60) day period.

     (f) No member of a vulnerable population shall be placed in disciplinary confinement for

any period of time unless the individual presents an immediate and present danger and there is no

reasonable alternative for placement. Such placement shall last only as long as necessary to find an

alternative housing placement.

     (g) A prisoner should not be placed in restrictive housing pending investigation of a

disciplinary offense unless their presence in the general population would pose a danger to

themselves, staff, other prisoners, or the public. A prisoner's placement in restrictive housing

pending investigation shall be reviewed within twenty-four (24) hours by the director or the

director's designee. No prisoner shall remain in investigative segregation for a longer period of time

than the maximum term of disciplinary segregation permitted for the most serious offense charged.

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     42-56.4-5. Administrative confinement; Protective custody.

     (a) Placement in administrative confinement is limited to individuals who pose an

imminent threat to the security of the institution, shall only be considered when it serves a specific

penological purpose, and must last no longer than necessary to address the specific reason(s) for

placement.

     (b) All prisoners in administrative confinement shall receive a minimum of four (4) hours

out-of-cell each day.

     (c) Each prisoner in administrative confinement must have their status reviewed by the

classification board, director, or director's designee every seven (7) days for the first sixty (60) days

of the prisoner's placement and at least every thirty (30) days after the first sixty (60) days.

     (d) The department shall create an individualized step-down plan, as defined in § 42-56.4-

2, no later than fourteen (14) days after each placement in administrative confinement. This step-

down plan shall be shared with the prisoner unless specifically articulable security concerns require

otherwise.

     (e) Where possible, prisoners with serious mental illness should be diverted from

administrative confinement and placed in a clinically appropriate alternative form of housing. Any

prisoner with a serious mental illness placed in administrative confinement must receive intensive,

clinically appropriate mental health treatment for the entirety of the placement in administrative

confinement.

     (f) No prisoner classified to protective status may be held in conditions more restrictive

than those conditions allowed in administrative confinement.

     42-56.4-6. Transitional administrative confinement and step-down housing.

     (a) The department shall create a system of step-down and transitional housing and

programming for prisoners who require additional assistance in transitioning from administrative

confinement into the general population.

     (b) Conditions in transitional step-down and transitional housing shall mirror, to the extent

possible, those conditions allowed in the general population.

     (c) At a minimum, prisoners in step-down and transitional housing shall receive six (6)

hours of out-of-cell time each day.

     42-56.4-7. Reporting.

     The department of corrections shall issue a report to be made publicly available on the

department's website one year after the passage of this act and by January 31 of each year thereafter,

indicating the following, broken down by disciplinary, administrative, and transitional

confinement:

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     (1) The number of prisoners in each institution placed in restrictive housing during the past

year;

     (2) The nature of the infractions and behaviors leading to the use of restrictive housing;

     (3) The lengths of terms served in restrictive housing, including terms served consecutively

and cumulatively;

     (4) The race, ethnicities, gender, and religion of all prisoners placed in restrictive housing;

and

     (5) The number of members of a vulnerable population placed in restrictive housing, by

category promulgated in the definition thereof listed in § 42-56.4-2(7).

     SECTION 2. Section 42-35-1 of the General Laws in Chapter 42-35 entitled

"Administrative Procedures" is hereby amended to read as follows:

     42-35-1. Definitions.

     As used in this chapter:

     (1) Except as otherwise provided herein, "agency" means a state agency, authority, board,

bureau, commission, department, district, division, institution, office, officer, quasi-public agency,

or other political subdivisions created by the general assembly or the governor, other than the

legislature or the judiciary, that is authorized by law of this state to make rules or to determine

contested cases.

     (2) "Agency action" means:

     (i) The whole or part of an order or rule;

     (ii) The failure to issue an order or rule; or

     (iii) An agency's performing, or failing to perform, a duty, function, or activity or to make

a determination required by law.

     (3) "Agency head" means the individual in whom, or one or more members of the body of

individuals in which, the ultimate legal authority of an agency is vested.

     (4) "Agency record" means the agency rulemaking record required by § 42-35-2.3.

     (5) "Contested case" means a proceeding, including but not restricted to, ratemaking, price

fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required

by law to be determined by an agency after an opportunity for hearing.

     (6) "Electronic" means relating to technology having electrical, digital, magnetic, wireless,

optical, electromagnetic, or similar capabilities.

     (7) "Electronic record" means a record created, generated, sent, communicated, received,

or stored by electronic means.

     (8) "Final rule" means a rule promulgated under §§ 42-35-2.6 through 42-35-2.9, an

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emergency rule promulgated under § 42-35-2.10, or a direct, final rule promulgated under § 42-35-

2.11.

     (9) "Guidance document" means a record of general applicability developed by an agency

which lacks the force of law but states the agency's current approach to, or interpretation of, law or

describes how and when the agency will exercise discretionary functions. The term does not include

records described in subdivisions (19)(i), (ii), (iii), or (iv).

     (10) "Index" means a searchable list in a record of subjects and titles with page numbers,

hyperlinks, or other connectors that link each index entry to the text to which it refers.

     (11) "License" includes the whole or part of any agency permit, certificate, approval,

registration, charter, or similar form of permission required by law, but it does not include a license

required solely for revenue purposes.

     (12) "Licensing" includes the agency process respecting the grant, denial, renewal,

revocation, suspension, annulment, withdrawal, or amendment of a license.

     (13) "Order" means the whole or a part of a final disposition, whether affirmative, negative,

injunctive, or declaratory in form, of a contested case.

     (14) "Party" means each person or agency named or admitted as a party, or properly seeking

and entitled as of right to be admitted as a party.

     (15) "Person" means any individual, partnership, corporation, association, the department

of environmental management, governmental subdivision, or public or private organization of any

character other than an agency.

     (16) "Promulgate," with respect to a rule, means the process of writing a new rule, or

amending or repealing an existing rule. "Promulgation" has a corresponding meaning. The process

of "promulgation" begins with the filing of the notice of proposed rulemaking under § 42-35-2.7

and ends upon the effective date of the rule. "Promulgate" also includes the completion of the

rulemaking process for emergency rules (§ 42-35-2.10) or direct final rules (§ 42-35-2.11), if

applicable.

     (17) "Reasonable charge" means the lowest, customary charge for a service.

     (18) "Record" means information that is inscribed on a tangible medium or that is stored

in an electronic or other medium and is retrievable in perceivable form.

     (19) "Rule" means the whole or a part of an agency statement of general applicability that

implements, interprets, or prescribes law or policy or the organization, procedure, or practice

requirements of an agency and has the force of law. The term includes the amendment or repeal of

an existing rule. The term is used interchangeably in this chapter with the term "regulation." The

term does not include:

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     (i) A statement that concerns only the internal management of an agency and which does

not affect private rights or procedures available to the public individuals under the custody or

supervision of the department of corrections shall be considered members of the public for the

purposes of this chapter, except where disclosure of any rule or portion of a rule would endanger

the public welfare and security, pursuant to § 38-2-2(4)(F);

     (ii) An intergovernmental or interagency memorandum, directive, or communication that

does not affect private rights or procedures available to the public;

     (iii) An opinion of the attorney general, or an opinion of the ethics commission pursuant to

§ 36-14-11;

     (iv) A statement that establishes criteria or guidelines to be used by the staff of an agency

in performing audits, investigations, or inspections, settling commercial disputes, negotiating

commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria

or guidelines would enable persons violating the law to avoid detection, facilitate disregard of

requirements imposed by law, or give an improper advantage to persons that are in an adverse

position to the state;

     (v) A form developed by an agency to implement or interpret agency law or policy; or

     (vi) A guidance document.

     (20) "Sign" means, with present intent, to authenticate a record:

     (i) To execute a tangible symbol; or

     (ii) To attach to or logically associate with the record an electronic symbol, sound, or

process.

     (21) "Small business" shall have the same meanings that are provided for under 13 C.F.R.,

Pt. 121, as may be amended from time to time.

     (22) "Small business advocate" means the person appointed by the chief executive officer

of the commerce corporation as provided in § 42-64-34.

     (23) "State register" means the publication required under chapter 8.2 of title 42.

     (24) "Website" means a website on the internet or other similar technology or successor

technology that permits the public to search a database that archives materials required to be

published or exhibited by the secretary of state or an agency under this chapter.

     (25) "Writing" means a record inscribed on a tangible medium. "Written" has a

corresponding meaning.

     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RESTRICTIVE HOUSING AT

CORRECTIONAL FACILITIES ACT

***

     This act would establish conditions, policies and procedures for the restrictive housing of

inmates at correctional facilities in Rhode Island with the least restrictive conditions possible, the

guidelines and restrictions for disciplinary confinement, transitional disciplinary confinement and

step-down housing. This act would also require publicly available reporting of restrictive housing

statistics on the website of the department of corrections on an annual basis.

     This act would take effect upon passage.

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