HOUSE OF REPRESENTATIVES |
H.B. NO. |
1812 |
THIRTY-SECOND LEGISLATURE, 2024 |
H.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO CORRECTIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that experts have long documented the detrimental effects of solitary confinement on individuals. Spending time in solitary confinement has been found to increase the risk of premature death, even after release from incarceration. Solitary confinement is a severe form of punishment that is closely associated with long-lasting psychological harm and poor post-release outcomes. The official purposes of solitary confinement are typically divided into punishment and correctional facility management. When used as punishment by facility authorities, sometimes called "disciplinary custody" or "disciplinary segregation", solitary confinement serves as a response to misconduct charges such as fighting or drug use. When used for correctional facility management, often called "administrative custody" or "administrative segregation", solitary confinement serves to separate inmates deemed to pose a threat to staff or other inmates, or as protective custody for inmates who seem or are determined to be unsafe in the general prison population. Although the purposes of solitary confinement vary, correctional facility conditions and restrictions are often similar whether an incarcerated person is in disciplinary or administrative custody.
The legislature also finds that an overwhelming body of evidence shows that solitary confinement--which deprives inmates of meaningful human contact, including phone privileges that allow them to speak with loved ones--creates permanent psychological, neurological, and physical damage. The legislature notes that House Concurrent Resolution No. 85, H.D. 2, S.D. 1 (2016), requested the establishment of a task force to study effective incarceration policies to improve Hawaii's correctional system. The interim report of the task force, which was dated February 2017 and provided to the legislature, included an observation by the Vera Institute of Justice that the prevalence of incarcerated people having mental illness is at odds with the design, operation, and resources of most correctional facilities. Studies show that the detrimental effects of solitary confinement far exceed the immediate psychological consequences identified by previous research, such as anxiety, depression, and hallucinations. Unfortunately, these detrimental effects do not disappear once an inmate is released from solitary confinement. Even after release back into a community setting, a former inmate faces an elevated risk of suicide, drug overdose, heart attack, and stroke.
The legislature recognizes that in 2019, twenty-eight states introduced legislation to ban or restrict the use of solitary confinement. Further, twelve states have passed reform legislation, including Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those enacted by Connecticut and Washington, reflect tentative and piecemeal approaches to change. However, most of the new laws represent significant reforms to existing practices and thus have the potential to facilitate more humane and effective practices in prisons and jails.
The legislature further finds that the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as "the Nelson Mandela Rules" to honor the legacy of the late South African president, are based upon an obligation to treat all prisoners with respect for their inherent dignity and value as human beings. The rules prohibit torture and other forms of maltreatment. Notably, the rules also restrict the use of solitary confinement as a measure of last resort, to be used only in exceptional circumstances. Moreover, the rules prohibit the use of solitary confinement for a time period exceeding fifteen consecutive days and characterize this disciplinary sanction as a form of "torture or other cruel, inhuman or degrading treatment or punishment". Indeed, Nelson Mandela said he found solitary confinement to be "the most forbidding aspect of prison life" and stated that "[t]here was no end and no beginning; there's only one's own mind, which can begin to play tricks".
Accordingly, the purpose of this Act is to:
(1) Restrict the use of solitary confinement in state-operated and state-contracted correctional facilities, with certain specified exceptions;
(2) Require the department of corrections and rehabilitation to develop written policies and procedures regarding solitary confinement by July 1, 2025;
(3) Requires the Hawaii correctional system oversight commission to review certain housing placements;
(4) Require the department of corrections and rehabilitation to develop policies and procedures to review committed persons placed in solitary confinement and develop a plan for committed persons currently in solitary confinement by April 1, 2025; and
(5) Require a report to the legislature and Hawaii correctional system oversight commission.
SECTION 2. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§353- Solitary
confinement; restrictions on use;
policies and procedures. (a)
The use of solitary confinement in correctional facilities shall be
restricted as follows:
(1) Except as
otherwise provided in subsection (d), a committed person shall not be placed in
solitary confinement unless there is reasonable cause to believe that the
committed person would create a substantial risk of immediate serious harm to
the committed person's self or another, as evidenced by recent threats or
conduct, and that a less restrictive intervention would be insufficient to
reduce this risk; provided that the correctional facility shall bear the burden
of establishing the foregoing by clear and convincing evidence;
(2) Except as
otherwise provided in subsection (d), a committed person shall not be placed in
solitary confinement for non-disciplinary reasons;
(3) Except as
otherwise provided in subsection (d), a committed person shall not be placed in
solitary confinement before receiving a personal and comprehensive medical and
mental health examination conducted by a clinician;
(4) Except as
otherwise provided in subsection (d), a committed person shall only be held in
solitary confinement pursuant to initial procedures and reviews that provide
timely, fair, and meaningful opportunities for the committed person to contest
the confinement. These procedures and
reviews shall include the right to:
(A) An
initial hearing held within twenty-four hours of placement in solitary
confinement, in the absence of exceptional circumstances, unavoidable delays,
or reasonable postponements;
(B) Appear
at the hearing;
(C) Be
represented at the hearing;
(D) An
independent hearing officer; and
(E) Receive
a written statement of reasons for the decision made at the hearing;
(5) Except as
otherwise provided in subsection (d), the final decision to place a committed
person in solitary confinement shall be made by the warden or the warden's
designee;
(6) Except as
otherwise provided in this subsection or in subsection (d), a committed person
shall not be placed or held in solitary confinement if the warden or the
warden's designee determines that the committed person no longer meets the
criteria for the confinement;
(7) A clinician
shall evaluate on a daily basis each committed person who has been placed in
solitary confinement, in a confidential setting outside of the committed
person's cell whenever possible, to determine whether the committed person is a
member of a vulnerable population.
Except as otherwise provided in subsection (d), a committed person
determined to be a member of a vulnerable population shall be immediately
removed from solitary confinement and moved to an appropriate placement elsewhere;
(8) A disciplinary
sanction of solitary confinement imposed on a committed person who is
subsequently removed from solitary confinement pursuant to this subsection
shall be deemed completed;
(9) Except as
otherwise provided in subsection (d), during a facility-wide lockdown, a
committed person shall not be placed in solitary confinement for more than
fifteen consecutive days, or for more than twenty days total during any
sixty-day period;
(10) Cells or other
holding or living space used for solitary confinement shall be properly
ventilated, lit, temperature-controlled, clean, and equipped with properly
functioning sanitary fixtures;
(11) A correctional
facility shall maximize the amount of time spent outside of the cell by a
committed person held in solitary confinement by providing the committed person
with access to recreation, education, clinically appropriate treatment
therapies, skill-building activities, and social interaction with staff and
other committed persons, as appropriate;
(12) A committed person held in solitary confinement shall not be denied access to:
(A) Food, water, or any other necessity; and
(B) Appropriate medical care, including emergency medical care;
(13) Each
committed person held in solitary confinement shall be given a written copy of
the committed person's sanction and the criteria for a pathway back into the
general population. The department shall
ensure that the committed person understands the reason for the sanction and
the criteria for the pathway back into the general population. The committed person's case manager shall
work with the committed person in solitary confinement to develop a plan of
action to reduce the committed person's violations, return to the general
population, and work on the committed person's rehabilitation; and
(14) A committed
person shall not be released directly from solitary confinement to the
community during the final one hundred eighty days of the committed person's
term of incarceration, unless necessary for the safety of the committed person,
staff, other committed persons, or the public.
(b) Except as otherwise provided in subsection
(d), a committed person who is a member of a vulnerable population shall not be
placed in solitary confinement; provided that a committed person who is a
member of a vulnerable population because:
(1) The committed
person is twenty-one years of age or younger, has a disability based on mental
illness, or has a developmental disability:
(A) Shall
not be subject to discipline for refusing treatment or medication, or for
engaging in self‑harm or related conduct or threatening to do so; and
(B) Shall
be screened by a correctional facility clinician or the appropriate screening
service pursuant to rules and, if found to meet the criteria for civil
commitment, shall be placed in a specialized unit designated by the director or
deputy director of the department, or civilly committed to the least
restrictive appropriate short-term care or psychiatric facility designated by
the department of health, but only if the committed person would otherwise have
been placed in solitary confinement; and
(2) The committed
person is sixty years of age or older; has a serious medical condition that
cannot be effectively treated while the committed person is in solitary
confinement; or is pregnant, in the postpartum period, or recently suffered a
miscarriage or terminated a pregnancy, shall alternately be placed in an
appropriate medical or other unit designated by the director or deputy director
of the department, but only if the committed person would otherwise have been
placed in solitary confinement.
(c) A committed person shall not be placed in
solitary confinement or in any other cell or other holding or living space, in
any facility, whether alone or with one or more other committed persons, if
there is reasonable cause to believe that there exists a risk of harm,
harassment, intimidation, extortion, or other physical or emotional abuse to
the committed person or to another committed person in that placement.
(d) The use of solitary
confinement in correctional
facilities shall be permitted only under the following limited
circumstances:
(1) The warden or
the warden's designee determines that a facility-wide lockdown is necessary to
ensure the safety of committed persons in the facility, until the warden or the
warden's designee determines that the threat to committed person safety no
longer exists. The warden or the
warden's designee shall document the specific reasons that any facility-wide lockdown
was necessary for more than twenty-four hours, and the specific reasons that
less restrictive interventions were insufficient to accomplish the facility's
safety goals. Within six hours of a
decision to extend a facility-wide lockdown beyond twenty-four hours, the
director or deputy director of the department shall publish the foregoing
reasons on the department's website and shall provide meaningful notice to the
legislature of the reasons for the lockdown;
(2) The warden or
the warden's designee determines that a committed person should be placed in
emergency confinement; provided that:
(A) A
committed person shall not be held in emergency confinement for more than
twenty-four hours; and
(B) A
committed person placed in emergency confinement shall receive an initial
medical and mental health evaluation within six hours and a personal and
comprehensive medical and mental health examination conducted by a clinician
within twenty-four hours. Reports of these
evaluations shall be immediately provided to the warden or the warden's
designee;
(3) A physician,
based upon the physician's personal examination of a committed person,
determines that the committed person should be placed or held in medical
isolation; provided that any decision to place or hold a committed person in
medical isolation due to a mental health emergency shall be made by a clinician
and based upon the clinician's personal examination of the committed
person. In any case of medical isolation
occurring under this paragraph, a clinical review shall be conducted at least
every six hours and as clinically indicated.
A committed person in medical isolation due to a mental health emergency
pursuant to this paragraph shall be placed in a mental health unit designated
by the director or deputy director of the department;
(4) The warden or
the warden's designee determines that a committed person should be placed in
protective custody; provided that:
(A) A
committed person may be placed in voluntary protective custody only when the
committed person has provided voluntary, informed, and written consent and
there is reasonable cause to believe that protective custody is necessary to
prevent reasonably foreseeable harm.
When a committed person makes a voluntary, informed, and written request
to be placed in protective custody and the request is denied, the correctional
facility shall bear the burden of establishing a basis for denying the request;
(B) A
committed person may be placed in involuntary protective custody only when the
correctional facility is able to establish by clear and convincing evidence
that protective custody is necessary to prevent reasonably foreseeable harm and
that a less restrictive intervention would be insufficient to prevent the harm;
(C) A
committed person placed in protective custody shall be provided opportunities
for activities, movement, and social interaction, in a manner consistent with
ensuring the committed person's safety and the safety of other persons, that
are comparable to the opportunities provided to committed persons in the
facility's general population;
(D) A
committed person subject to removal from protective custody shall be provided
with a timely, fair, and meaningful opportunity to contest the removal;
(E) A
committed person who is currently or may be placed in voluntary protective
custody may opt out of that status by providing voluntary, informed, and
written refusal of that status; and
(F) Before
placing a committed person in protective custody, the warden or the warden's
designee shall use a less restrictive intervention, including transfer to the
general population of another facility or to a special-purpose housing unit for
committed persons who face similar threats, unless the committed person poses
an extraordinary security risk so great that transferring the committed person
would be insufficient to ensure the committed person's safety; and
(5) The warden or
the warden's designee determines that a committed person should be placed in
solitary confinement pending investigation of an alleged disciplinary offense;
provided that:
(A) The
committed person's placement in solitary confinement is pursuant to approval
granted by the warden or the warden's designee in an emergency
situation, or is because the committed person's presence in the facility's
general population while the investigation is ongoing poses a danger to the
committed person, staff, other committed persons, or the public; provided
further that the determination of danger shall be based upon a consideration of
the seriousness of the committed person's alleged offense, including whether
the offense involved violence or escape, or posed a threat to institutional
safety by encouraging other persons to engage in misconduct;
(B) The
committed person's placement in solitary, disciplinary, or administrative
segregation shall not revert to another form of segregation after the initial
sanction has been served;
(C) A
committed person's placement in solitary confinement pending investigation of
an alleged disciplinary offense shall be reviewed within twenty-four hours by a
supervisory-level employee who was not involved in the initial placement
decision; and
(D) A
committed person who has been placed in solitary confinement pending
investigation of an alleged disciplinary offense shall be considered for
release to the facility's general population if the committed person
demonstrates good behavior while in solitary confinement. If the committed person is found guilty of
the disciplinary offense, the committed person's good behavior shall be
considered when determining the appropriate penalty for the offense.
(e) No later than July 1, 2025, the department
shall develop written policies and implement procedures, as necessary and
appropriate, to effectuate this section, including:
(1) Establishing
less restrictive interventions as alternatives to solitary confinement,
including separation from other committed persons, transfer to other correctional
facilities, and any other sanction not involving solitary confinement that is
authorized by the department's policies and procedures; provided that any
temporary restrictions on an committed person's privileges or access to
resources, including religious services, mail and telephone privileges,
visitation by contacts, and outdoor or recreation access, shall be imposed only
when necessary to ensure the safety of the committed person or other persons,
and shall not restrict the committed person's access to food, basic
necessities, or legal assistance;
(2) Requiring
periodic training of disciplinary staff and all other staff who interact with
committed persons held in solitary confinement; provided that the training:
(A) Is
developed and conducted with assistance from appropriately trained and
qualified professionals;
(B) Clearly
communicates the applicable standards for solitary confinement, including the
standards set forth in this section; and
(C) Provides
information on the identification of developmental disabilities; symptoms of
mental illness, including trauma disorders; and methods for responding safely
to persons in distress;
(3) Requiring
documentation of all decisions, procedures, and reviews of committed persons
placed in solitary confinement;
(4) Requiring
monitoring of compliance with all rules governing cells, units, and other
spaces used for solitary confinement;
(5) Requiring the
posting of quarterly reports on the department's official website that:
(A) Describe
the nature and extent of each correctional facility's use of solitary
confinement and include data on the age, sex, gender identity, ethnicity,
incidence of mental illness, and type of confinement status for committed
persons placed in solitary confinement;
(B) Include
the committed person population as of the last day of each quarter and a
non-duplicative, cumulative count of the number of committed persons placed in
solitary confinement during the fiscal year;
(C) Include
the incidence of emergency confinement, self-harm, suicide, and assault in any
solitary confinement unit, as well as explanations for each instance of
facility-wide lockdown; and
(D) Exclude
personally identifiable information regarding any committed person; and
(6) Updating the
department's corrections administration policy and procedures manual, as
necessary and appropriate, to comply with the provisions of this section,
including the requirement to use appropriate
alternatives to solitary confinement for committed persons who are members of a
vulnerable population.
(f)
Following the initial hearing for the placement of an individual into
solitary confinement, the department shall immediately notify and transmit all
relevant documentation and evidence to the Hawaii correctional system oversight
commission. The Hawaii correctional
system oversight commission shall thoroughly review all determinations
regarding the imposition of solitary confinement for fairness, impartiality,
alignment with best practices, and other factors the Hawaii correctional system
oversight commission finds relevant, and shall issue quarterly reports on the
utilization thereof.
To ensure strict adherence to the
solitary confinement procedures delineated within this chapter, and to prevent
the department or its contracted entities from implementing cell confinement
exceeding twenty hours without proper adherence to the procedures outlined in
this chapter, the Hawaii correctional system oversight commission shall
actively monitor and review all housing placements involving individuals
subjected to twenty or more hours of cell confinement, irrespective of whether the
placements are designated as solitary confinement by the department or
state-contracted facilities.
(g) As used in this section:
"Correctional facility"
means a state prison, other penal institution, or an institution or a facility
designated by the department as a place of confinement under this chapter. "Correctional facility" includes
community correctional centers, high-security correctional facilities,
temporary correctional facilities, in-state correctional facilities,
state-contracted correctional facilities operated by private entities, and
jails maintained by county police departments.
"Member of a vulnerable
population" means any committed person who:
(1) Is twenty-one
years of age or younger;
(2) Is sixty years
of age or older;
(3) Has a physical
or mental disability, a history of psychiatric hospitalization, or recently
exhibited conduct, including serious self-mutilation, that indicates the need
for further observation or evaluation to determine the presence of mental
illness;
(4) Has a
developmental disability, as defined in section 333F-1;
(5) Has a serious
medical condition that cannot be effectively treated while the committed person
is in solitary confinement;
(6) Is pregnant, in
the postpartum period, or recently suffered a miscarriage or terminated a
pregnancy;
(7) Has a
significant auditory or visual impairment; or
(8) Is perceived to
be lesbian, gay, bisexual, transgender, or intersex.
"Solitary confinement"
occurs when all of the following conditions are present:
(1) A committed
person is confined in a correctional facility pursuant to disciplinary,
administrative, protective, investigative, medical, or other purposes;
(2) The confinement occurs
in a cell or similarly physically restrictive holding or living
space, whether alone or with one or more other committed persons, for twenty
hours or more per day; and
(3) The committed
person's activities, movements, and social interactions are severely
restricted."
SECTION 3. No later than April 1, 2025, the department of corrections and rehabilitation shall:
(1) Develop written policies
and implement procedures, as necessary and appropriate, for the review of
committed persons placed in solitary confinement;
(2) Initiate a review of each committed person placed in solitary confinement during the immediately preceding fiscal year to determine whether the placement would be appropriate in light of the requirements of section 353- , Hawaii Revised Statutes; and
(3) Develop a plan for providing step-down and transitional units, programs, and staffing patterns to accommodate committed persons currently placed in solitary confinement, committed persons who may prospectively be placed in solitary confinement, and committed persons who receive an intermediate sanction in lieu of being placed in solitary confinement; provided that staffing patterns for correctional and program staff are set at levels necessary to ensure the safety of staff and committed persons pursuant to the requirements of this Act.
SECTION 4. No later than forty days prior to the convening of the regular session of 2026, the department of corrections and rehabilitation shall submit to the legislature and Hawaii correctional system oversight commission a status report of the department's progress toward full compliance with this Act, along with draft copies of written policies and procedures undertaken pursuant to this Act.
SECTION 5. New statutory material is underscored.
SECTION 6. This Act shall take effect on July 1, 3000; provided that section 2 shall take effect on July 1, 2025.
Report Title:
DCR; Hawaii Correctional System Oversight Commission; Correctional Facilities; Inmates; Solitary Confinement; Restrictions; Report
Description:
Restricts the use of solitary confinement in state-operated and
state-contracted correctional facilities, with certain specified
exceptions. Requires the Department of
Corrections and Rehabilitation to develop written policies and procedures
regarding solitary confinement by 7/1/2025.
Requires the Hawaii Correctional System Oversight Commission to review
certain housing placements. Requires the
Department to develop policies and procedures to review committed persons
placed in solitary confinement and develop a plan for committed persons
currently in solitary confinement by 4/1/2025.
Requires a report to the Legislature and Hawaii Correctional System
Oversight Commission. Effective 7/1/3000. (HD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.