Lesser Infractions Aren’t Supposed to Land You in Solitary Confinement. They Do Anyway.

New York prisons have illegally sent at least 1,100 people to solitary confinement for infractions that aren’t eligible for the punishment, a New York Focus analysis has found.

Chris Gelardi   ·   October 24, 2022
A series of New York Focus investigations has found that DOCCS has failed to implement major facets of a landmark solitary confinement law. | Grant Durr

A recently enacted reform law strictly limits the reasons for which prisons and jails may send incarcerated people to solitary confinement as punishment. But the New York state prison system has been using its own criteria, illegally sending hundreds of people to solitary for lesser infractions, New York Focus has found.

A review of data published by the Department of Corrections and Community Supervision (DOCCS), which runs the state prison system, shows that, at minimum, prisons sent people to solitary confinement almost 1,200 times between April and September — nearly one in five solitary confinement sentences — for infractions that aren’t among the law’s solitary-eligible offenses.

That figure is based on a reading of the law — which leaves significant room for interpretation — that leans heavily in DOCCS’s favor, thus the true number of illegal solitary sentences may be much higher. According to New York Focus’s analysis, a majority of the rest of the solitary confinement sentences were only plausibly legal, depending on the specific circumstances of each infraction. The figure also assumes that the allegations represented in the data are accurate and that the prisons offered fair disciplinary hearings for them — both hardly givens.

The reform law, known as the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, went into effect on March 31. The law led to a steep decline in the official solitary confinement population, but its full impact has been blunted: A series of New York Focus investigations has found that DOCCS has failed to implement major facets of the law.

Not only has the prison agency been sending people to solitary confinement for illegal reasons, but it has been routinely holding people in solitary confinement for illegally long periods; isolating people with disabilities, despite HALT barring facilities from sending them to solitary; and failing to abide by standards the law set for alternatives to solitary confinement, including by shackling people to tables for hours a day.

In several cases, the HALT violations have come on direct orders from DOCCS leadership, the investigations have shown.

Data also show that DOCCS is disproportionately sending Black people to solitary confinement.

“Solitary confinement is torture,” said Victor Pate, co-director of the HALT Solitary advocacy campaign. “It’s egregious they are sending people, disproportionately Black … people, to this abuse, even for reasons not allowed under the law.”

DOCCS’S REGULATIONS before HALT’s enactment allowed prisons to send people to solitary confinement for any of a wide range of infractions, including possessing contraband, having sex, and causing a “disturbance … to facility operations.”

HALT narrowed those criteria. First, the law established that an incarcerated person isn’t eligible for more than three days of solitary confinement unless they commit an offense “so heinous or destructive” that keeping them among the general facility population “creates a significant risk of imminent serious physical injury” to staff or other incarcerated people. (Over 98 percent of solitary sentences since HALT’s enactment have been for more than three days, according to DOCCS’s data.)

The law then set seven categories of infractions that are potentially solitary-eligible: rioting, extortion, coercion, attempted escape, possession of a deadly weapon, sexual assault, and assault/threatening serious injury or death.

For those accused of assault, HALT also mandates that they intended to cause “serious injury or death” and have a history of violence to be eligible for solitary. For threats, it dictated that there must be “a strong likelihood” that the accused would carry them out.

Thus the law leaves significant room for jail and prison authorities to exercise discretion. Yet even with all of the gray area, DOCCS has unilaterally imposed its own parameters on whom it can send to solitary. As New York Focus has reported, a week before HALT went into effect, DOCCS proposed updates to its rules and regulations to supposedly comply with HALT — but the updates omitted several aspects of the law. Among the missing tenets was any update to the criteria for solitary-eligible infractions; until now, it was unclear what guidelines DOCCS was using to determine for what infractions it could send incarcerated people to solitary confinement.

But when asked by New York Focus about the apparently illegal solitary sentences, DOCCS said that it is only sending those found guilty of the highest “tier” of infraction — an internal designation that includes alcohol possession and other contraband violations, being in the wrong part of a prison at the wrong time, having sex, and partaking in a demonstration. DOCCS asserted that this put it in compliance with the law, but HALT makes no mention of DOCCS’s tiers, and many top-tier violations are clearly ineligible for solitary confinement under the reform law.

It’s difficult to know exactly how many solitary confinement sentences since the law’s enactment have been illegal, since HALT did not conform its language to DOCCS’s rules, and DOCCS did not change its rules to comport with HALT. But at least 18 percent of the solitary sentences between April and September have been for infractions that definitively do not comport with HALT’s criteria, according to a New York Focus analysis of DOCCS data.

For example, since April, prison officials have sentenced nearly 200 people to solitary for more than three days primarily for staging demonstrations (with no accompanying accusations of violence) and more than 360 primarily for contraband infractions, like smuggling and alcohol or drug possession (with no accompanying accusations of weapons possession).

And prisons have sent thousands more to solitary for offenses that only plausibly fall under HALT’s criteria, depending on the specific circumstances of the infraction — like the nearly 500 people whose only listed eligible offense was making unspecified “threats” (with no accompanying accusations of violence), and the more than 1,200 accused primarily of “fighting” (but not assault).

None of this analysis takes into consideration HALT’s overarching requirement that a solitary-eligible infraction be “so heinous or destructive” that it presents a significant safety risk.

These infractions have landed incarcerated people in isolation for months at a time. The median isolation sentence among the more than 6,500 handed down between April and September was 71 days, with nearly 290 people sentenced to a year or more of isolation.

For those sent to solitary for definitively illegal reasons per New York Focus’s analysis, the median isolation sentence was 60 days, with nearly 90 people sentenced to six months or more.

DOCCS told New York Focus that incarcerated people can earn reductions in their isolation time, so not everyone serves their full sentence.

The agency also said people are diverted from solitary confinement to a less restrictive isolation area, known as a residential rehabilitation unit (RRU), after 15 days — reflecting a time limit on traditional solitary confinement imposed by HALT. However, as New York Focus has reported, prisons have been routinely violating that legal limit; as of October 1, a majority of those in solitary confinement in state prisons had been held there for longer than 15 days, according to DOCCS’s own data.

Data suggest that race may also play a role in prisons’ decisions on whom to send to solitary: DOCCS numbers show that they’re significantly more likely to send Black incarcerated people to solitary confinement than any other racial category. Whereas the state prison population has averaged 49 percent Black since HALT went into effect — already nearly triple the proportion of Black people living in New York state — the solitary confinement population has averaged 62 percent Black, according to monthly data snapshots published by DOCCS.

The racial disparity is worse for RRUs, which have averaged 65 percent Black.

“This is just one of countless examples of their racist disregard for the law, and more importantly for the basic humanity and dignity of people they are brutalizing,” said Pate.

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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