To Implement a New Law, Prisons Likely Broke Another

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.”