To Implement a New Law, Prisons Likely Broke Another

Legislators told the prison department it was violating a solitary confinement reform law. So it ignored them.

Chris Gelardi   ·   December 2, 2022
Changing the rules to sidestep reforms has become a mainstay of Acting Commissioner Anthony Annucci's policy playbook. | DOCCS

The New York state prison agency has repeatedly ignored formal scrutiny of its illegal implementation of a landmark reform law, likely violating more state laws in the process, New York Focus has learned.

The scrutiny relates to the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which went into effect across the state at the end of March. The law places strict limits on how prisons and jails can use solitary confinement: whom they can put there, why they can send them there, and how long they can keep them there. But, as New York Focus has reported, the prison department has adopted temporary internal policies that violate several foundational aspects of the law, holding thousands of people in unlawful conditions as a result.

Public officials and advocates have called out the prison system’s illegal policies. In June, 56 state legislators signed onto comments expressing “grave concerns” about the regulations and pointing out half a dozen areas where they violated HALT. State law requires the prison department to publish responses to those comments. Instead it’s ignored them — renewing the temporary policies three times without addressing the concerns.

“The way that they have gone about this rulemaking reflects a desire to avoid being accountable to the public,” said Antony Gemmell, director of detention litigation at the New York Civil Liberties Union.

On Friday, the NYCLU sent a letter to the prison department calling out its “ongoing failure, in violation of state law,” to address public comments. The letter demanded that the agency come up with a timeline to address the scrutiny by December 9.

Members of the public can sue an agency if it doesn’t follow the legal rulemaking processes.

The New York Department of Corrections and Community Supervision (DOCCS), which runs the state prison system, did not respond to questions before press time.

When state law changes, agencies must adopt new internal rules and regulations to comply with it. And in order to change their rules, the agencies must submit proposed adjustments to the public for comment.

Despite having a full year to implement HALT, DOCCS only proposed new internal rules to comply with the reform law a week before it went into effect at the end of March. The following month, the department adopted the rules on a temporary emergency basis — a time-limited workaround permitted if “necessary for the preservation” of public health or safety, per state law.

The workaround allowed DOCCS to put off addressing scrutiny, as emergency rule adoptions are exempt from the public comment requirement — at least temporarily. As a backstop to prevent abuse, state law dictates that agencies must address the comments if they wish to renew their temporary emergency rules more than once. But DOCCS found a workaround for that, too.

The department first renewed the emergency rules in July, and because it was the first renewal, it wasn’t required to address public comments — including legislators’ June letter.

In September, DOCCS renewed the emergency rules a second time — which should have compelled it to publish an “assessment of public comments.” But it ignored all comments submitted before the previous renewal.

“The agency received no public comment since publication of the last assessment of public comment,” DOCCS wrote, though the department had not conducted a “last assessment.”

The department pulled the same maneuver again in an emergency rule renewal in November. The NYCLU called both cases out in its letter, referring to the tactic as “meritless.”

DOCCS is accountable for assessing the comments that it receives,” Gemmell said. “I think this is something that the governor’s office should be very concerned about.”

Governor Kathy Hochul’s office did not respond to New York Focus’s request for comment.

Changing the rules to sidestep reforms has become a mainstay of DOCCS’s policy playbook. In March, the department came up with highly questionable interpretations of a new parole reform law to keep hundreds sitting in jail after they were eligible for release.

And the policies for which DOCCS is currently dodging scrutiny are full of provisions that themselves ignore the law, which have led to thousands being subjected to illegal conditions.

For instance, DOCCS didn’t update the list of reasons for which prisons are allowed to send people to solitary confinement to comply with HALT. Since the policies’ publication, prisons have illegally sent hundreds of people to solitary for lesser infractions.

The department also didn’t update its categorized exemptions from solitary. Prisons have illegally sent hundreds of people with disabilities to solitary, including some with the highest levels of mental health care needs.

And DOCCS left out language in HALT mandating a presumption against restraining incarcerated people when they’re participating in out-of-cell activities. On orders from DOCCS’s Acting Commissioner Anthony Annucci, prisons have been shackling every resident of an isolation unit to a desk for hours as they partake in “therapeutic” programs.

Despite DOCCS’s resistance to it, HALT has been in effect for eight months — and a matter of state law for a year more. “DOCCS cannot legislate,” the lawmakers wrote in their June letter criticizing the policies. “That is the role of the legislature.”

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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