State Prisons Are Routinely Violating New York’s Landmark Solitary Confinement Law

Five months after a law to scale back solitary confinement went into effect, a majority of the New York prison system’s solitary population had been held there for longer than the law permits.

Chris Gelardi and Emily Brown   ·   September 12, 2022
"We go from one concrete enclosure to another concrete enclosure. We don’t go outside to walk around; we go into another dog run.” | Édouard Hue

NEW YORK PRISONS are holding hundreds of people in solitary confinement longer than state law permits, effectively refusing to implement the heart of one of the state’s highest-profile recent criminal justice reforms.

As of September 1, the majority of people held in solitary confinement in New York state prisons — 276 people — had been there for longer than state law allows, according to new data released Monday. Several times more were held in units not designated as solitary but still separated from the general population, which incarcerated people report often do not meet standards set by a recent solitary confinement reform law, and can function as unofficial solitary.

The state legislature passed the law, the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, in 2021, but it only went into full effect a year later, on March 31. The law placed strict limitations on whom prisons and jails can place in solitary confinement, what infractions they can send them there for, and how long they can keep them there. It has resulted in a dramatic reduction in the prisons’ official solitary confinement population: from over 1,600 when it was signed into law to less than 300 at its low point earlier this year. (It has since ticked back up to over 500.)

The law has been met with pushback from corrections officers unions, which have launched an aggressive public campaign demanding its repeal. They argue that prolonged solitary confinement, which has been shown to produce grave mental anguish, is key to preventing prison and jail violence. Proponents of the law have countered that re-introducing a punishment denounced by international human rights bodies is a non-starter. “HALT will never be repealed because New York will never again sanction the use of torture,” said Senator Julia Salazar, who sponsored HALT in the state Senate, where she chairs the corrections committee.

But while the pushback against HALT has garnered significant press attention, little has been paid to how the law has actually been implemented. State data published as a requirement of HALT and reviewed by New York Focus, as well as interviews with incarcerated people and advocates, reveal that, in the five months since HALT went into full effect, state prisons have routinely violated several of its foundational tenets.

HALT placed limits on the number of days a prison or jail is allowed to keep someone in solitary confinement. But, as first reported by Gothamist with last month’s numbers, data show that the prison system is violating the restrictions about as often as it is adhering to them. On September 1, the average person in solitary had been held there for longer than the legal limit.

A spokesperson for the New York Department of Corrections and Community Supervision (DOCCS), which runs the state prison system, said it “continuously monitors the status of incarcerated individuals housed in [solitary confinement] cells and makes every effort to effect transfers as expeditiously as possible.” The spokesperson said that the transfers take place “when appropriate space is available.”

HALT also created a new category of prison and jail units where facilities may send those whom they wish to separate from the general population but who have reached their maximum time in traditional solitary confinement. Yet interviews with incarcerated people and advocates suggest that some prisons aren’t adhering to the law’s requirements for these new units. They asserted that prisons have refused to facilitate legally mandated programming for people in the new units and have limited their out-of-cell time to stints in small “dog run” pens, among other violations — essentially treating the units as an extension of solitary confinement.

“There’s no accountability from DOCCS whatsoever,” said Victor Pate, an organizer with the New York Campaign for Alternatives to Isolated Confinement. “There’s no oversight. And it’s just a mess right now.”

Widespread Violations

Under HALT, prisons and jails are barred from keeping incarcerated people in “segregated confinement” — any isolation that exceeds 17 hours a day — for more than 15 consecutive days.

To prevent facilities from abusing the 15-day rule by cycling people in and out of solitary, HALT also prohibited prisons and jails from keeping people in segregated confinement for more than 20 total days out of any 60-day period.

According to monthly data published by DOCCS as a requirement under HALT, in the first month of the law’s enactment, the prison system largely followed these timing restrictions. As of May 1, DOCCS reported that only two people held in solitary had been in for more than 15 days, with the department noting that both were transferred out on their 16th day. Meanwhile, only one percent of those who had been in solitary over the previous month had spent more than 20 days there.

But prisons’ adherence to HALT quickly went downhill. On June 1, a third of the people in segregated confinement had been there for more than 15 consecutive days, and by the beginning of this month, 51 percent had been held for longer than the legal limit.

As of September 1, 43 percent of those who had been in solitary over the previous two months had spent more than the maximum 20 days there.

The data don’t make clear which state prisons are most responsible for the large number of violations of HALT’s time restrictions. But Salazar told New York Focus that, based on calls her office has received, it’s likely that HALT’s implementation varies prison by prison, with smaller facilities more likely to abide by the law than larger ones.

‘Therapeutic’ Units as Indefinite Solitary

Prisons have been regularly violating HALT’s restrictions for segregated confinement, even though HALT provides a mechanism to keep those who hit their legal time limits for solitary out of the general population.

Under the law, any person separated from the general population for more than 15 consecutive days must either be in a new, HALT-created housing designation, known as a residential rehabilitation unit (RRU), or an alternative unit that adheres to RRU standards. Per HALT, facilities are supposed to provide people in RRUs and the alternative units with at least six daily hours of congregate, out-of-cell therapeutic programming and mental health treatment, as well as at least one hour of recreation.

But incarcerated people and advocates charge that prisons aren’t adhering to HALT’s standards for RRUs, instead treating them as an extension of segregated confinement.

Since September 2021, Brian, who asked for his full name to be withheld to prevent retaliation by prison guards, has been held in isolation for 18 hours a day at Mid-State Correctional Facility. In July, despite HALT going into effect, officials added an additional 180 days to Brian’s isolation sentence for throwing water on a corrections officer, he said. He is housed in Mid-State’s “Step-Down” unit, an alternative to segregated confinement that offers programming and treatment and, as DOCCS confirmed to New York Focus, should adhere to RRU requirements. But Brian’s experience in his unit doesn’t meet those standards.

Brian’s recreation time doesn’t happen in a congregate setting as mandated under HALT, he said. Instead, he has access to the “dog run,” a fenced-in recreation pen — about six feet by eight feet, Brian estimated — connected to his cell, for seven hours throughout the day. “We go from one concrete enclosure to another concrete enclosure,” he said. “We don’t go outside to walk around; we go into another dog run.” To interact with other people, he said, you have to “go outside and holler.”

“The whole idea behind HALT is [that] out-of-cell time has to be congregate so people can have meaningful interactions with each other,” said Stefen Short, a lawyer for the Legal Aid Society’s Prisoners’ Rights Project. “I don’t think that anyone could reasonably argue that access to a rec pen is out of cell time.”

Furthermore, the “therapeutic” programming to which Brian is supposed to have access consists of sitting in a classroom and completing packets of worksheets, he told New York Focus. “I had a question in there that said, ‘What’s your favorite kind of food?’” he said. “I saw no therapeutic basis in this.”

Since Step-Down isn’t considered segregated confinement, people in the unit haven’t been able to benefit from HALT’s 15-consecutive-day limit. According to Brian, the policy for getting discharged from Step-Down is unclear to those in the unit. When he and other people housed in Step-Down asked prison officials about the discharge procedure, they were told that people must stay in the unit for a minimum of nine months, he said.

“We go from one concrete enclosure to another concrete enclosure.”

—Brian, Mid-State Correctional Facility

When asked about conditions in Step-Down and other alternative units, the DOCCS spokesperson responded that they “all conform to the same requirements” as RRUs. “While individuals housed in Step-Down units and RRUs are offered seven hours of out-of-cell time each day, they are not obligated to take that time,” the spokesperson said.

Until a recent transfer, Jeremy Zielinski was incarcerated at Attica Correctional Facility. In August, prison officials placed him in isolated “involuntary protective custody,” he said. HALT mandates that protective custody conditions meet RRU standards “at a minimum.” But Zielinski asserted that his isolation unit offered no activities with other incarcerated people, no programming, and no recreation time beyond one hour in a “small individual … cage,” according to a letter he sent to legislators and DOCCS officials. After he sent the letter, Zielinski told New York Focus, he was given “program” time, which entailed two hours in a room with a corrections officer, a civilian facilitator, his unit neighbor, and half a dozen tablet computers.

Short of the Legal Aid Society and Pate of the Campaign for Alternatives to Isolated Confinement both said that they hear similar complaints about HALT violations multiple times a week. Their offices have fielded accounts of illegal day to day variation in the amount of treatment and programming time. “The out-of-cell time that they are supposed to be having access to may or may not even happen,” said Pate. “Sometimes they’re getting out for an hour, sometimes they’re getting out for two hours.”

Short and Pate have also heard accounts of prisons preventing incarcerated people from accessing legal representation and handing out retaliatory disciplinary infractions that keep them in solitary for longer than 15 days, they said.

In response to the varied allegations of HALT violations, the DOCCS spokesperson told New York Focus over email that, “after HALT was signed into law, the Department convened a Central Office Steering Committee, established subcommittees, and trained all superintendents, Central Office division heads, and statewide and local union representatives from each facility and bargaining unit.”

“These actions ensured that DOCCS had implemented necessary policies and infrastructure changes when the law took effect,” the spokesperson said.

“There’s no accountability from DOCCS whatsoever. There’s no oversight. And it’s just a mess right now.”

—Victor Pate, Campaign for Alternatives to Isolated Confinement

Despite the uneven adherence to RRU standards, some New York prisons are relying heavily on the new units as an alternative to segregated confinement. Several medium and maximum security men’s prisons recorded housing roughly one in 10 incarcerated people in RRUs as of September 1, per the DOCCS data. Gouverneur, Great Meadow, and Fishkill prisons each reported over 100 people in their RRUs.

The Upstate Correctional Facility, formerly a “supermax” prison where a majority of people were placed in long-term segregated confinement before HALT, has transitioned into a large-scale residential rehabilitation unit, with nearly 70 percent of its nearly 800 prisoners held in RRUs.

But those RRU populations are only part of the picture. In the HALT-mandated data, a majority of prisons report holding no one in RRUs — likely because, as DOCCS confirmed to New York Focus, the department doesn’t include alternative units that are subject to RRU standards in its monthly reports. Mid-State, where Brian has been held in the “Step-Down” unit that is supposed to adhere to RRU standards, has reported holding zero people in RRUs. Similarly, Zielinski won’t be counted among Attica’s RRU population during the time he was kept in involuntary protective custody.

Outdated Policies

One reason prisons may struggle to meet HALT’s standards is that DOCCS’s own internal policies don’t match those standards.

After having a year to prepare, the department waited until March 24 — a week before HALT’s enactment date — to propose updates to its internal rules and regulations to comply with the law. And, as a coalition of 56 state legislators pointed out in a June letter to DOCCS, many of the proposed regulations came up short in complying with HALT.

Among other violations, the regulations offer no new parameters for conditions in RRUs. In the sole additions mentioning the units, the rules only state that people “will be transferred or moved to an RRU” if they have “additional” solitary confinement time to serve after 15 days. The regulations also fail to mention that alternative forms of incarceration — like Brian’s Step-Down unit or Zielinski’s protective custody — must either comply with RRU standards or be limited to 15 consecutive days.

DOCCS has yet to revise the regulations that it proposed more than five months ago. The department did not say when it would publish its final regulations, but a spokesperson said that it “is in the process of carefully reviewing and considering” public comments.

Some assert that the state needs to take new steps to force the prison system’s hand and ensure accountability. Since HALT does not have an enforcement mechanism and DOCCS has been so far unresponsive to lawmakers’ complaints, Short believes that litigation may be the most promising path forward. Pate suggested an outside monitoring committee is necessary to keep DOCCS in check.

The problems with HALT’s implementation may point to deeper issues at the prison agency, which has resisted increased oversight and failed to properly implement laws and policies related to health care, Covid-19, parole, and more.

“It’s harder to implement any change in the law in a place that is shrouded in secrecy and the public eye is kept away from it,” Salazar said.

Rebecca McCray contributed reporting.

Chris Gelardi is a reporter for New York Focus investigating the state’s criminal-legal system. His work has appeared in more than a dozen other outlets, most frequently The Nation, The Intercept, and The Appeal. He is a past recipient of awards from Columbia… more
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