How County Jails Sidestep Solitary Confinement Law

New York imposes strict regulations on “segregated confinement.” What if it’s just called “confinement”?

Eliza Fawcett   ·   November 22, 2023
Jails can skirt HALT regulations if they offer seven hours of out-of-cell time. There’s little guidance for what those hours should look like. | Static: Tristan Bowersox | Illustration: Maia Hibbett

When a new state law came down limiting the use of solitary confinement, officials at the Broome County jail took a simple route to compliance: Say you don’t use it.

Terrance Mortenson, 22, said he spent more than 60 consecutive days in isolation at the jail this year. Every day, he could leave his cell for seven hours and enter a larger room with other people being punished with isolation sentences. There was little to do: no television, no electronic tablets for video calls, no activities. People mostly walked around in circles or returned to their cells to sleep. Though he and the others spent most of their time alone and unstimulated, in the past year, Broome County has reported holding zero people in solitary confinement. So have at least 42 of the 56 other counties outside New York City.

All those zeros obscure the reality of jail isolation in New York. They exempt jails from key regulations under the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which imposed strict limits on the use of the internationally condemned practice when it took effect last year. Among other restrictions, HALT prohibits correctional facilities from holding people in “segregated confinement” — isolation that exceeds 17 hours a day — for more than 15 consecutive days. While the law has largely been successful in imposing the time cap, it says little about what the required out-of-cell hours should look like. Once on-paper compliance is reached, it leaves a lot beyond the bounds of regulation.

“It used to be that you’d be locked in 23 hours a day, one hour out. They don’t do that anymore,” said Ryan Carney, 42, who recently spent about a week in isolation in Broome County. “But they could give you a couple things to do.”

While a New York Focus series documented HALT’s fraught rollout in state prisons, its implementation in county jails has received comparatively little attention. But interviews with four currently incarcerated people who have experienced solitary confinement, state oversight documents obtained by New York Focus, and accounts from civil rights attorneys and criminal justice advocates reveal a system slow to respond to the law and eager to find ways around it.

“On paper, HALT was a massive and important step forward in reducing segregated confinement,” said Antony Gemmell, the director of detention litigation at the New York Civil Liberties Union. But he said his office regularly receives “deeply concerning” reports about county jails’ compliance, raising “significant concerns around its implementation.”

“If the cell is open, they can come out. Where else can they go?”

—Jerome Wright, Jails Justice Network

In part, this may be because HALT was largely designed for prisons — state-run facilities that typically incarcerate people with sentences longer than a year. State Senator Julia Salazar, a Brooklyn Democrat who sponsored the law, said that given her jurisdiction, “state facilities were always top of mind.”

Now county jails outside New York City — which on any given day hold about 10,000 people serving short sentences or awaiting sentencing — are left to figure out how to implement a law that wasn’t really designed for them.

“Honestly, it’s been an absolute nightmare,” said Albany County Sheriff Craig Apple. “This was one of those state laws that was passed with probably no input from sheriff’s offices that run the jails.”

Many county sheriffs have vocally opposed the law, arguing that it makes their facilities more dangerous. When it came time to implement it, they had to answer to another state-level body: the State Commission of Correction, or SCOC, which oversees county jails in New York. In training materials obtained by New York Focus, SCOC appeared particularly focused on definitions: drawing a line between “segregated confinement” — tightly-regulated solitary — and just “confinement,” a more loosely regulated form of isolation. The guidance creates room for jails to hold people for long periods under the latter condition — and still report zero people in solitary.

According to Jerome Wright, a co-director of the Jails Justice Network who campaigned for HALT, “The numbers don’t lie, but they don’t tell the whole truth either.”

State Commission of Correction
State Commission of Correction

SCOC training slides delineate the differences between “segregated confinement” and “confinement.” “II” stands for “incarcerated individual.”

During a hearing in May, Terrence Moran, a recently retired SCOC director, told state legislators that HALT’s implementation had gone smoothly.

“For the most part,” Moran said, “the jails have done a phenomenal job getting incarcerated individuals the seven hours, minimally, out-of-cell time.”

Internal SCOC documents suggest otherwise. According to SCOC’s own inspection reports, obtained through public records requests, the agency found during a September 2022 facility tour that the Oswego County Jail had no policy for solitary confinement at all. The following month, inspectors discovered that the Nassau County Correctional Center, which claimed it “does not intend to use segregated confinement,” was locking people isolated in their cells for more than the allotted 17 hours. And in January, SCOC found that the Seneca County Jail was locking some people in their cells for 23 hours a day.

SCOC training slide explains when HALT does not apply. | State Commission of Correction

At least two dozen jails SCOC inspected between late 2022 and early 2023 didn’t have complete HALT policies on the books. Others weren’t properly reporting their data.

SCOC had made it simple for jails to comply: In a presentation from its staff training on HALT, obtained through a public records request, the commission explains that with “segregated confinement” for more than 17 hours a day, “all applicable HALT-related minimum standards apply and must be observed.” But with any other “confinement,” in which someone is “provided at least 7 hours out-of-cell time each day,” ”the requirements of HALT do not apply.”

During his isolation period in Broome County, Carney said, “you don’t have any books to read, not even a paper to write on about what you did wrong and what you could have done different.” But his cell door was open for seven hours a day. In its 2022 annual report, the Broome County Sheriff’s Office said that the facility “no longer utilizes segregated confinement as defined by NYS minimum standards.”

Fred Akshar, the Broome County sheriff, is a former state senator who voted against HALT upon its passage. His office declined to comment to New York Focus, citing “shoddy reporting” in a previous story on the jail’s opioid treatment program, although a spokesperson did not identify any specific factual inaccuracies and did not return a phone call.

“Out of cell time is the same for all persons. It is as socially meaningful or stimulating as the individual chooses.”

—Erie County Sheriff's Office

The Erie County Sheriff’s Office similarly reported zero people held in solitary confinement. Wright, who worked at the Erie County Holding Center in Buffalo as a civilian program facilitator for a year after HALT’s implementation, said he frequently saw incarcerated people serving isolation sentences during which their cell doors were opened daily for seven hours.

“If the cell is open, they can come out,” Wright said. “Where else can they go? They’re not going to recreation, they’re not going to programming, they’re not going to get any counseling. There’s no TV, no phone. They end up getting into fights and arguing over nonsensical stuff because they’re frustrated, angry, and out-of-their-mind stir crazy.”

Before HALT went into effect, the Buffalo jail held about 10 people in solitary confinement each month, according to the jail management division of the Erie County Sheriff’s Office. Solitary was an “effective tool to encourage good behavior,” the sheriff’s office said in a statement, and the law regulating it has “unquestionably made correctional facilities a less safe environment.” At the Buffalo jail, assaults between incarcerated individuals rose from 117 in 2021, to 172 in 2022, to 226 as of October, according to the sheriff’s office. And between the Buffalo jail and the rural Erie County Correctional Facility, there were 39 assaults on staff by incarcerated people in 2022, an increase from 21 in 2021.

“Lacking any additional resources to fully implement the HALT Act, in order to comply with the law, the Erie County Holding Center has discontinued the use of segregated confinement as a sanction,” the sheriff’s office said.

Asked about the out-of-cell conditions that Wright described, the sheriff’s office said: “Out of cell time is the same for all persons. It is as socially meaningful or stimulating as the individual chooses.”

In Salazar’s view, providing congregate out-of-cell time without offering any stimulation, socialization, or services undermines HALT’s intent.

“The spirit of HALT is about ending the, frankly, antisocial practices that also result in antisocial behavior, which a correction system should be motivated to reduce,” she said.

For out-of-cell time in the Broome County jail, Carney said, “they throw you in there with the person you just got in a fight with. So, half the time, you’re fighting again the next day.”

When people get put in solitary confinement, chances mount that their incarceration will end fatally. Suicide rates are significantly higher for people who spend time in solitary, and the risk persists even after release. HALT is supposed to shield people from these and other harms — especially for the most vulnerable incarcerated populations.

SCOC’s interpretation of the law and the paltry support jails have received to implement it have allowed facilities to skirt some of those tenets. The law bars correctional facilities from placing a member of a “special population” — including anyone who is 21 years old or younger, 55 or older, has a disability, or is pregnant — in solitary confinement. But according to a SCOC slide, facilities can place those people in isolation as long as they get their seven hours out.

HALT also specifies that jails with a capacity of more than 500 beds — like the Broome County jail and the Erie County Holding Center — are required to provide “residential rehabilitation units” (RRUs), which offer congregate programming, therapeutic services, and recreation, among other resources. After 15 consecutive days in solitary confinement, or 20 days total in a 60-day period, facilities must either release the incarcerated person from isolation or transfer them to an RRU. As of November, no county jails appear to have published data on people held in RRUs.

State Commission of Correction
State Commission of Correction

SCOC training slides explain regulations for special populations and RRUs.

SCOC outlines various exceptions to the RRU requirement. At the Buffalo jail, for instance, there is no RRU because “segregated confinement is no longer used as a sanction,” according to the Erie County Sheriff’s Office. The sheriff’s office also noted that it wouldn’t have the resources to create such a unit.

“Our research indicates we would need 24 additional staff to operate the RRUs,” the sheriff’s office said. “Since we no longer use segregated confinement as a sanction the point is moot.”

Marc Fliedner​, director of the mental health and traumatic brain injury programs at Disability Rights New York, described the rollout of HALT as “problematic.”

“County jails, which were all operating with different policies for solitary confinement, are in the process of quickly adapting to the law, without adequate guidance or financial resources,” he wrote in an email. “As a result, under provisions that jails administrators don’t recognize as violative of HALT tenets, DRNY is seeing people with significant mental health diagnoses confined for extended periods of time.”

Some jails say they’ve received insufficient HALT training, one of the law’s requirements. Before HALT took effect, SCOC provided a video conference workshop for all sheriffs and jail administrators on the new statutory requirements, according to the commission.

The Erie County Sheriff’s Office confirmed that SCOC had distributed training materials and “conducted webinars to provide an overview and answer questions.” But in Albany, Sheriff Apple said the county jail received little in the way of training.

“The Commission of Correction was supposed to provide us with training and everything else. But I don’t think they had the resources for it,” he said. “So basically, we had to kind of create our own training for it, and get it approved, and then roll it out and train all of our officers.”

Large jails like his, which has a capacity of more than 1,000 beds, are not set up well to provide out-of-cell time, Apple said. Out-of-cell time in Albany involves letting an incarcerated person walk around a tier, have recreation time, or make a phone call, but the person must be individually supervised in order to prevent conflicts, he said.

“You just can’t let them all out for seven hours a day without all kinds of inmate movement,” Apple said.

Back in Broome County, Mortenson said he has served many isolation sentences, mostly for getting into fights. During his two-month isolation period earlier this year, the out-of-cell time from about 7:30 AM to 2:30 PM offered little solace. The congregate room was “just like being in your cell, but bigger,” he said.

“A lot of people, they don’t even come out for the seven hours, because there’s nothing to do,” Mortenson said. Often, he was one of them.

“All I was doing was sleeping, 18 hours out of the day,” he said. “I’d sleep the whole second shift. Sleep ’til the doors unlocked.”

Chris Gelardi contributed reporting.

Eliza Fawcett is a freelance journalist who was recently a criminal justice project reporter for New York Focus. She has reported for The New York Times and the Hartford Courant.
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