Prison Agency Is Considering Invoking Bogus Emergencies to Skirt Solitary Reforms, Lawsuit Alleges

At issue is the Humane Alternatives to Long-Term Solitary Confinement Act, known as HALT, which went into effect in 2022. The law set restrictions on which incarcerated people New York jails and prisons can send to solitary confinement, how long they can keep them there, and for what reason. It also raised standards for both traditional and new “rehabilitative” isolation units, guaranteeing prisoners a minimum number of daily out-of-cell hours for group programs and recreation.

Corrections officers have railed against the law since before its enactment, claiming that the restrictions lead to increased prison violence. When guards launched a three-week wildcat strike earlier this year, repealing HALT was one of their top demands.

The Department of Corrections and Community Supervision, or DOCCS, had suspended HALT during the strike, using emergency authority to keep most incarcerated people confined to their cells while skeleton crews and National Guard troops handled meals and medical care. As part of a strike-ending agreement, DOCCS announced that it was pausing programming aspects of HALT for an additional 90 days after officers returned to work last month.

The agency offered few other details about how it would implement that partial HALT suspension and whether it planned to extend it beyond the 90 days. As part of another, ongoing lawsuit against DOCCS, Legal Aid requested more information about it.

DOCCS’s responses, filed as part of the new lawsuit, reveal a multi-pronged plan to broaden its power to suspend aspects of HALT.

First, DOCCS is attempting to expand its emergency authority. Rather than the originally cited emergency — the strike — the agency is claiming that a pre-existing staffing crisis, exacerbated by the firing of more than 2,000 officers who didn’t return to work, gives it the power to continue to suspend some HALT provisions. (New York had one of the most richly staffed prison systems in the country before the strike, though a diffuse prison population and rampant workers’ compensation abuse, among other issues, have made it difficult to fully staff shifts.)

“DOCCS is taking re-opening plans on a facility-by-facility basis with an emphasis on doing so slowly and safely given the staffing crisis,” the agency wrote in court filings.

In addition to the 90-day suspension, DOCCS is weighing a new system where it could declare an emergency anytime prisons experience “inadequate staffing levels.” The setup would allow the agency to suspend aspects of HALT on “high impact” days, which it defines as Fridays, Saturdays, Sundays, or any other day designated by the commissioner, allowing DOCCS to choose when it follows the law.

The agency had offered to implement the “high impact” day system during strike negotiations, but never officially agreed to it. In a response to Legal Aid, DOCCS said that the provision is “still under consideration.”

Finally, DOCCS is asserting that confining people to their cells during an emergency, which it did during and after the strike, doesn’t count as solitary confinement “as defined by HALT” — therefore the law’s provisions restricting the practice don’t apply. Under HALT, prisons are required to give incarcerated people between four and seven hours of out-of-cell time, depending on if and how long they’ve been in isolation.

In a statement, DOCCS said that, moving forward, Commissioner Daniel Martuscello will assess safety every 30 days “and begin programming at the facilities where it is reasonably safe to do so. This process of review and restarting programming has already begun.”

“As we are in an on-going state of emergency system wide, [HALT] specifically allows us to suspend segregated confinement rules,” DOCCS said.

“By invoking the ‘facility-wide emergency’ exception in HALT in the way that it has, as broadly as it has, DOCCS is opening the door to a long-term suspension of the law that essentially nullifies it,” said Antony Gemmell, supervising attorney of the Prisoners’ Rights Project at the Legal Aid Society.

DOCCS has attempted similar legal maneuvers before, particularly when it comes to HALT, as New York Focus has reported. Among other violations, the agency crafted its own definition of “disability” that contradicted HALT’s prohibition against sending disabled people to solitary. It similarly drafted a definition of a solitary-eligible infraction that was much broader than HALT’s. And it filed regulations in the state register that flouted the law, prompting several rounds of pushback by HALT’s authors in the state legislature.