Can Anyone Make New York Prisons Follow Solitary Confinement Law?

LAST TUESDAY, top members of New York state legislative committees got to publicly question Anthony Annucci, the “acting” head of the state prison agency, for the first time in almost a year. Last March, lawmakers refused to confirm Annucci’s nomination to the position — which he has held for the past nine years — paradoxically letting him keep his post.

Annucci faced legislators again last week after 10 months of flouting them: Shortly after his last hearing, the landmark Humane Alternatives to Long-Term (HALT) Solitary Confinement Act went into effect, and Annucci’s department has violated nearly every facet of the law since. But during the hearing, an annual meeting to discuss public safety elements of the state budget, the perpetual interim commissioner seemed comfortable. Most of the legislators didn’t seem to know what to ask.

The committee heads were aware of reports — like New York Focus’s multi-part investigation — that prisons had been breaking the law, which restricts the use of solitary confinement. But they spent the few minutes they were allotted asking for statistics the prison agency publishes on its website. They conflated different prison units, allowing Annucci and his deputy to take detours. And they followed up with vagaries.

“There are certain facilities that still have not complied with HALT — what would be the commentary related to that?” Senator Jamaal Bailey, head of the criminal justice policy committee, asked at one point.

When the prison officials replied with evasions, the legislators tended to move on without follow-ups.

The hearing was an urgent matter for those in prison isolation units. A smattering of agencies and organizations are tasked with keeping tabs on HALT’s implementation, but they’ve so far done little to confront the prison system over its obstinance. And Governor Kathy Hochul has been silent on the issue. For five months, her office has neglected to respond to New York Focus’s repeated inquiries.

Democratic lawmakers won’t have another opportunity to publicly grill prison officials for months, as New York’s annual budget legislation dominates the legislative schedule.

From the other side of the aisle, Republican legislators painted HALT as overkill, and solitary confinement — prolonged use of which international human rights bodies have categorized as torture — as easy time.

“Working technology, outdoor spaces, food brought to you — it sounds nicer than most of the hotel rooms in Albany that I’ve been in,” quipped Senator George Borrello, who later characterized his comments as “tongue-in-cheek.”

“This hearing is demonstrating to me what happens when Democrats fail to dedicate the time and demonstrate the same interest in our state’s carceral and criminal legal systems that Republicans do,” Senator Julia Salazar, head of the corrections committee and a lead sponsor of HALT, tweeted during the hearing, which she couldn’t attend because she was ill.

“If you don’t expose this stuff, their false narrative prevails.”

THE MOST SPECIFIC questions about HALT came from Senator Brad Hoylman-Sigal, head of the judiciary committee, who pointed out that the prison system has been violating a foundational tenet of the law: a 15-day limit on holding people in solitary confinement. Facilities are supposed to divert those sentenced to prolonged isolation to a “residential rehabilitation unit,” where, per HALT, they should be offered more out-of-cell recreation time, as well as classroom-style programming.

But as of October, Hoylman-Sigal noted, more than half of those in prison solitary — 288 people — had been there for longer than 15 days.

Annucci was ready for the question. It’s a space issue, he told the senator, and his department has reduced the number of people held in solitary for longer than the legal limit to 21. He added that prisons are giving those stuck in solitary for longer than 15 days additional hours of out-of-cell time.

According to Annucci, the driving force behind the lack of space was an uptick in assaults shortly after HALT’s enactment, which “overwhelmed” the system. Borrello, the Senate Republican, echoed the talking point in comments to New York Focus after the hearing: “HALT has increased violence in our prisons and has jeopardized the safety of staff and inmates to support a radical political agenda of so-called criminal justice ‘reforms.’”

No one asked about prisons’ own data that show that, between April and September, officials sent nearly 1,200 people to solitary confinement for lesser infractions — like “disobeying an order” — that are definitively ineligible for solitary under HALT. (Thousands more infractions were likely ineligible.)

Nor did anyone inquire about the racial disparities in solitary confinement sentences. As of the start of the year, 61 percent of the solitary confinement population was Black, compared to 49 percent of the overall prison population. In December, the state inspector general found “persistent racial disparities in discipline” in the prison system, with officers 22 percent more likely to ticket Black incarcerated people than white ones.

I’m appalled with the acting commissioner’s responses.

Hoylman-Sigal told New York Focus that he was “appalled with the acting commissioner’s responses” during the hearing. “Our corrections system is operating outside our statute, which was thoroughly considered, and negotiated by the executive itself,” he said.

When asked about whether there would be another hearing, Hoylman-Sigal responded: “I sure hope so.”

FOR BOTH SOLITARY confinement and the “rehabilitation” unit residents, HALT mandates that facilities offer congregate, out-of-cell recreation time. And Assemblymember Harvey Epstein tried to ask about prisons’ practice of sending those residents to isolated outdoor cages that are attached to their cells (and roughly the same size as them), in violation of the law.

“Are you saying they are being locked in a different cell outside?” he asked. “I’ve been where people are outside, and it’s a little box. That’s not where they’re spending their [time]?”

Annucci evaded. Instead of addressing the small outdoor pens Epstein was referring to, he described the indoor areas where people in isolation are taken for classroom-style “therapeutic” programming. “But the recreation is outside,” Annucci added at the tail end of his response.

“Great,” Epstein said.

Incarcerated people report that, in several prisons, indoor therapeutic programming mostly consists of filling out packets of “childish” worksheets and coloring books. And since mid-April 2022 — less than a month into HALT’s enactment — officers have been placing the thousands of rehabilitation unit residents in wrist and ankle cuffs and shackling them to caged desks during programming, which often lasts for several hours.

Annucci said in the hearing that he has “suspended” the provision of HALT that prohibits placing residents in restraints during programming.

HALT doesn’t give him the power to do that. The only exception to the no-restraints rule is if prison officials, on an “individual” basis, deem someone a public safety threat. Yet no legislator questioned his decision.

READ MORE: New York’s Prison Chief Ordered Guards to Illegally Shackle People to Desks

They didn’t question his stated reasoning, either. Annucci again pointed to an uptick in assaults, specifically in the rehabilitation units — but the prison system has refused to share evidence with Salazar, whose office should theoretically oversee it.

TOWARD THE END of the hearing, Senator Liz Krueger, finance committee chair, relayed questions that Salazar had sent in.

“This is not really my territory,” Krueger started off. She tried to ask about prisons’ practice of sending people with diagnosed mental illnesses to solitary confinement — which they’ve done hundreds of times since HALT’s enactment, in violation of the law.

“They’re in our prisons,” she said. “Is there another model we should be looking at to address such a large percentage of the population that seems to be having added issues?”

Annucci sat back with his arms crossed. His executive deputy commissioner, Daniel Martuscello, responded with the same rationalization the prison system has given to New York Focus: He conflated HALT’s broad “disability” exception for solitary confinement with a far narrower ban, from a far older law, that keeps people with certain “serious” mental illnesses, like schizophrenia, out of solitary.

“Going back to 2008–2009 … we created specific units dealing with people with mental illness,” Martuscello said. “Those units still exist.”

Lawmakers, including HALT’s sponsors, have repeatedly asserted that that conflation is against the law, and that prisons should be sending no one on the mental health caseload to solitary.

After Martuscello’s answer, Krueger moved to another topic.

This hearing is demonstrating to me what happens when Democrats fail to dedicate the time and demonstrate the same interest in our state’s carceral and criminal legal systems that Republicans do.

The prison agency has used the same tactic to evade scrutiny from executive agencies.

HALT bestowed a little-known state agency called the Justice Center for the Protection of People With Special Needs with the responsibility to oversee certain aspects of its implementation. In July, after Justice Center staff conducted their first prison visit since the law’s enactment, the agency sent a letter to the prison agency and the state Office of Mental Health asking why the prison had sent someone with a diagnosed mental illness to solitary confinement.

The prison agency responded by outlining the language of the old, narrower law. And the Justice Center left it at that. “Justice Center reports are closed upon receipt of [prison agency] and [Office of Mental Health] correspondence,” a center spokesperson told New York Focus.

For its part, the state Office of Mental Health told New York Focus in September that it has never discussed with prison officials which people HALT exempts from solitary confinement. But in its response to the Justice Center letter, it cited the same outdated policy as the prison department. The office did not respond to follow-up inquiries.

READ MORE: Prisons Are Illegally Throwing People With Disabilities Into Solitary Confinement

Since its July letter, the Justice Center has only published one other record that mentions a HALT-related site visit. A spokesperson said the center is working on an annual HALT report that will be published sometime this year.

The Correctional Association of New York, a nongovernment organization with special prison oversight powers, has also been monitoring for HALT violations. Yet, like the Justice Center, its process is slow: It has only issued two reports on prison visits that took place after HALT’s enactment. And the state government’s main incarceration oversight body, the State Commission of Correction, told New York Focus that its HALT monitoring efforts are focused on local jails.

Meanwhile, Annucci will run the prisons his way.