SB104 HD2

SECTION 1. The legislature finds that experts have long documented the detrimental effects of restrictive housing on individuals. Spending time in restrictive housing has been found to increase the risk of premature death, even after release from incarceration. Restrictive housing is a severe form of punishment that is closely associated with long-lasting psychological harm and poor post-release outcomes. The official purposes of restrictive housing are typically divided into punishment and correctional facility management. When used as punishment by facility authorities, sometimes called "disciplinary custody" or "disciplinary segregation", restrictive housing 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", restrictive housing 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 restrictive housing 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 restrictive housing, 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, included an observation by the Vera Institute of Justice that the prevalence of incarcerated individuals having mental illness is at odds with the design, operation, and resources of most correctional facilities. Studies show that the detrimental effects of restrictive housing 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 restrictive housing. 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 as of 2021, legislation to ban or limit the use of restrictive housing in prison has been introduced in thirty-two states and the United States Congress. Further, twenty-four states have enacted statutes that limit or prohibit restrictive housing while other states have limited its use through administrative code, policy, or court rules. 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 restrictive housing as a measure of last resort, to be used only in exceptional circumstances. Moreover, the rules prohibit the use of restrictive housing 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 restrictive housing 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 restrictive housing 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 restrictive housing by July 1, 2026;

(3) Require the Hawaii correctional system oversight commission to review certain housing placements;

(4) Require the department of corrections and rehabilitation, by April 1, 2026, to develop policies and procedures to review committed persons placed in restrictive housing and develop a plan for committed persons currently in restrictive housing; 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- Restrictive housing; restrictions on use; policies and procedures. (a) Except as otherwise provided in subsection (d), the use of restrictive housing in correctional facilities shall be restricted as follows:

(1) A committed person shall not be placed in restrictive housing 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) A committed person shall not be placed in restrictive housing for non-disciplinary reasons;

(3) A committed person shall not be placed in restrictive housing before receiving a personal and comprehensive medical and mental health examination conducted by a clinician;

(4) A committed person shall only be held in restrictive housing 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 restrictive housing, in the absence of exceptional circumstances, unavoidable delays, or reasonable postponements;

(B) Appear at the hearing;

(D) An independent hearings officer; and

(E) Receive a written statement of reasons for the decision made at the hearing;

(5) The final decision to place a committed person in restrictive housing shall be made by the warden or the warden's designee;

(6) A committed person shall not be placed or held in restrictive housing 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 restrictive housing, 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. A committed person determined to be a member of a vulnerable population shall be immediately removed from restrictive housing and moved to an appropriate placement elsewhere;

(8) A disciplinary sanction of restrictive housing imposed on a committed person who is subsequently removed from restrictive housing pursuant to this subsection shall be deemed completed;

(9) During a facility-wide lockdown, a committed person shall not be placed in restrictive housing 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 restrictive housing 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 restrictive housing 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 restrictive housing shall not be denied access to:

(A) Food, water, or any other necessity;

(B) Appropriate medical care, including emergency medical care; and

(13) Each committed person held in restrictive housing shall receive 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 restrictive housing to develop a plan of action to reduce the committed person's violations, return the committed person to the general population, and work on the committed person's rehabilitation; and

(14) A committed person shall not be released directly from restrictive housing 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. This paragraph shall not be interpreted to delay a committed person's scheduled release.

(b) Except as otherwise provided in subsection (d), a committed person who is a member of a vulnerable population shall not be placed in restrictive housing; provided that a committed person who is a member of a vulnerable population because the committed person is:

(1) Twenty-one years of age or younger, has a disability based on mental illness, or has a developmental disability shall:

(A) 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) 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 restrictive housing; or

(2) Sixty years of age or older; has a serious medical condition that cannot be effectively treated while the committed person is in restrictive housing; or is pregnant, in the postpartum period, or recently suffered a miscarriage or terminated a pregnancy, shall alternatively 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 restrictive housing.

(c) A committed person shall not be placed in restrictive housing 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 restrictive housing 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 a committed person's 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 why 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 restrictive housing pending investigation of an alleged disciplinary offense; provided that:

(A) The committed person's placement in restrictive housing 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 restrictive housing shall not revert to another form of segregation after the initial sanction has been served;

(C) A committed person's placement in restrictive housing 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 restrictive housing 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 restrictive housing. 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, 2026, 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 restrictive housing, including separation from other committed persons, transfer to other correctional facilities, and any other sanction not involving restrictive housing that is authorized by the department's policies and procedures; provided that any temporary restrictions on a 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, water, basic necessities, or legal assistance;

(2) Requiring periodic training of disciplinary staff and all other staff who interact with committed persons held in restrictive housing; provided that the training:

(A) Is developed and conducted with assistance from appropriately trained and qualified professionals;

(B) Clearly communicates the applicable standards for restrictive housing, 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 restrictive housing;

(4) Requiring monitoring of compliance with all rules governing cells, units, and other spaces used for restrictive housing;

(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 restrictive housing and include data on the age, sex, gender identity, ethnicity, incidence of mental illness, and type of confinement status for committed persons placed in restrictive housing;

(B) Include the population of committed persons as of the last day of each quarter and a non‑duplicative, cumulative count of the number of committed persons placed in restrictive housing during the fiscal year;

(C) Include the incidence of emergency confinement, self-harm, suicide, and assault in any restrictive housing 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 this section, including the requirement to use appropriate alternatives to restrictive housing for committed persons who are members of a vulnerable population.

(f) Following the initial hearing for the placement of an individual into restrictive housing, 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 restrictive housing 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.

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 restrictive housing by the department or state‑contracted facilities, to ensure that the department and its contracted entities do not implement cell confinement exceeding twenty or more hours without proper adherence to the procedures set forth in this section.

(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 restrictive housing;

(6) Is pregnant, is 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.

"Restrictive housing" is defined as occurring 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, 2026, 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 restrictive housing;

(2) Initiate a review of each committed person placed in restrictive housing 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 restrictive housing, committed persons who may prospectively be placed in restrictive housing, and committed persons who receive an intermediate sanction in lieu of being placed in restrictive housing; provided that staffing patterns for correctional and program staff shall be 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 2027, 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.

THE SENATE	S.B. NO.	104
THIRTY-THIRD LEGISLATURE, 2025		S.D. 2
STATE OF HAWAII		H.D. 2