(a) Policy. As implemented by the Department, punitive segregation is a severe penalty that should not be used under certain circumstances in the Department's facilities. In particular, punitive segregation represents a serious threat to the physical and psychological health of adolescents, with respect to whom it should not be imposed. Moreover, punitive segregation is intended to address a particular offense committed in the course of an inmate's incarceration and should not be imposed in connection with an offense committed by the same inmate during a separate and previous incarceration.
(b) Exclusions.
(1) The following categories of inmates shall be excluded from punitive segregation:
(i) inmates under the age of 18;
(ii) as of January 1, 2016, inmates ages 18 through 21, provided that sufficient resources are made available to the Department for necessary staffing and implementation of necessary alternative programming; and
(iii) inmates with serious mental or serious physical disabilities or conditions.
(2) Consistent with these regulations, when assignment to punitive segregation would pose a serious threat to an inmate's physical or mental health, medical staff shall have the authority to determine that the inmate shall be barred from punitive segregation placement or shall be moved from punitive segregation to a more appropriate housing unit.
(3) An inmate who is excluded from punitive segregation at the time of an infraction due to age or health status shall not be placed in punitive segregation for the same infraction at a later date, regardless of whether the inmate's age or health status has since changed.
(4) Inmates shall not be confined to punitive segregation as punishment for grade 3 offenses.
(c) Due Process.
(1) Prior to the infraction hearing provided for in paragraph (2) of this subdivision, the inmate shall receive written notice detailing the charges against the inmate and a description of the inmate's behavior that gave rise to the charges. Inmates who are unable to read or understand such notice shall be provided with necessary assistance. Notice shall be served no later twenty-four (24) hours prior to commencement of the infraction hearing unless the inmate consents to a shorter time period in writing.
(2) All inmates, except those who qualify for and are placed in pre-hearing detention (PHD), shall be afforded an infraction hearing prior to placement in punitive segregation housing. Inmates who qualify for and are placed in PHD shall be afforded an infraction hearing no later than seven (7) business days after PHD placement, and time spent in PHD prior to the infraction hearing shall count toward the inmate's punitive segregation sentence.
(3) Inmates shall be permitted to appear in person, make statements, present material evidence, and call witnesses at infraction hearings.
(4) In the following circumstances, an inmate shall be entitled to the assistance of a hearing facilitator, who shall assist the inmate by clarifying the charges, explaining the hearing process, and assisting the inmate in gathering evidence:
(i) the inmate is illiterate or otherwise unable to prepare for or understand the hearing process; or
(ii) the inmate has otherwise been unable to obtain witnesses or material evidence.
(5) The Department has the burden of proof in all inmate disciplinary proceedings. An inmate's guilt must be shown by a preponderance of the evidence to justify punitive segregation placement.
(d) Time limitations on punitive segregation.
(1) Except where an inmate has committed a serious assault on staff as described in paragraph (4) of this subdivision, no inmate may be sentenced to punitive segregation for more than thirty (30) days for any single infraction.
(2) Except where an inmate is serving a punitive segregation sentence for a serious assault on staff as described in paragraph (4) of this subdivision, in no event may an inmate be held in punitive segregation longer than thirty (30) consecutive days. Except where an inmate is serving a punitive segregation sentence for a serious assault on staff as described in paragraph (4) of this subdivision, an inmate who has served thirty (30) consecutive days in punitive segregation shall be released from punitive segregation for at least seven (7) days before that inmate may be returned to punitive segregation.
(3) An inmate may not be held in punitive segregation for more than a total of sixty (60) days within any six (6) month period, unless, upon completion of or throughout the sixty (60) day period, the inmate has continued to engage in persistent, serious acts of violence, other than self-harm, such that any placement other than punitive segregation would endanger inmates or staff.
(i) In such instances, the Department shall not be required to release the inmate from punitive segregation after sixty (60) days have elapsed.
(ii) The Chief of Department must approve such extensions of punitive segregation placement in writing and state: (1) the reasons why placement in a less restrictive setting has been deemed inappropriate or unavailable, and (2) why retaining the inmate in punitive segregation is necessary to ensure the safety of inmates or staff.
(iii) The Department must immediately provide the Board and the relevant Correctional Health Authority with a copy of the Chief of Department's written approval.
(4) Inmates sentenced to punitive segregation for an assault on staff that causes staff to suffer one or more serious injuries, as listed under the Department's definition of "A" Use of Force Incidents, may receive a punitive segregation sentence of up to sixty (60) days for that single infraction.
(i) The Chief of Department or a designee must approve or disapprove in writing any punitive segregation sentence for a serious assault on staff that exceeds thirty (30) days. The written approval or disapproval shall be sent immediately to the inmate, the Board, and the relevant Correctional Health Authority.
(ii) While an inmate is serving a punitive segregation sentence for a serious assault on staff that exceeds thirty (30) days, the Department shall not be required to release the inmate from punitive segregation housing after thirty (30) consecutive days.
(iii) Where an inmate's punitive segregation sentence for a serious assault on staff exceeds forty-five (45) days, the Chief of Department or a designee shall complete a review of the sentence forty-five (45) days after its commencement to determine whether the inmate could safely be placed in an available alternative housing unit for the remainder of the sentence. The decision, and the reasoning supporting it, shall be stated in writing and immediately sent to the inmate, the Board, and the relevant Correctional Health Authority.
(5) In instances not covered by subparagraph (iii) of paragraph (4) of this subdivision, whenever forty-five (45) consecutive days of an inmate's time served in punitive segregation have elapsed, the Chief of Department or a designee shall complete a review of the inmate's time served on the forty-fifth (45th) day to determine whether the inmate can safely be placed in an alternative housing unit for the remainder of the sentence the inmate is serving. The decision, and the reasoning supporting it, shall be stated in writing and immediately sent to the inmate, the Board and the relevant Correctional Health Authority.
(6) Daily mental health rounds must be provided to inmates housed in punitive segregation who have been held there longer than thirty (30) consecutive days or have served more than sixty (60) days within a six (6) month period. Such rounds must be documented in writing. Beginning August 1, 2016, the Department shall additionally offer such inmates cognitive behavioral therapy or a similar evidence-based intervention aimed at addressing the root causes of the behavior that led to the inmates' extended stays in punitive segregation. Such programming shall be developed in consultation with the relevant Correctional Health Authority.
(e) Required out-of-cell time. Inmates confined to punitive segregation as punishment for non-violent or grade 2 offenses must be permitted at least seven (7) out-of-cell hours per day.
(f) Staffing.
(1) Correction officers assigned to punitive segregation housing shall receive forty (40) hours of special training designed to address the unique characteristics of punitive segregation and its inmates. Such training shall include, but shall not be limited to, recognition and understanding of mental illness and distress, effective communication skills, and conflict de-escalation techniques.
(2) At least twenty-five (25) percent of correction staff assigned to punitive segregation housing shall be assigned to steady posts.
(g) Time in punitive segregation owed from a previous incarceration. As of the effective date of this section, no inmate shall be assigned to or held in punitive segregation for any time from a separate and previous incarceration for which such inmate was sentenced to but did not serve in punitive segregation.
(h) Reports on punitive segregation.
(1) No later than sixty (60) days after implementation of enhanced supervision housing provided for in 40 RCNY § 1-16 of this chapter and every sixty (60) days thereafter, the Department shall submit to the Board information related to implementation of required changes to punitive segregation. This information shall include, but shall not be limited to:
(i) the number of inmates held in punitive segregation and the number of inmates waiting to be held in punitive segregation;
(ii) data related to the length of punitive segregation sentences and the frequency of the types of offenses resulting in punitive segregation sentences;
(iii) the status of the reduction of punitive segregation sentences from ninety (90) to thirty (30) days and any other efforts to reduce the use of and length of stay in punitive segregation;
(iv) the status of implementation of the Department's planned policy to require that an inmate be released from punitive segregation for a minimum of seven (7) days before returning to punitive segregation;
(v) the number of punitive segregation sentences of thirty-one (31) to forty-five (45) days in duration given to inmates for a serious assault on staff, disaggregated by whether the sentence was approved or disapproved by the Chief of Department or a designee;
(vi) the number of punitive segregation sentences exceeding forty-five (45) days in duration given to inmates for a serious assault on staff, disaggregated by whether the sentence was approved or disapproved by the Chief of Department or a designee;
(vii) the number of punitive segregation sentences the Chief of Department or a designee reviewed forty-five (45) days after commencement and the number of instances where, as a result of this review, an inmate was placed in an alternative housing unit for the remainder of the sentence;
(viii) the number of requests submitted to the Chief of Department to hold an inmate in punitive segregation for more than a total of sixty (60) days within a six (6) month period, disaggregated by whether the request was approved or disapproved by the Chief of Department;
(ix) the number of inmates who received two (2) or more placements in punitive segregation pursuant to 40 RCNY § 1-17(d)(3);
(x) the number of inmates currently in Department custody who have, during their current incarceration, been housed in punitive segregation a total of: one (1) to thirty (30) days, thirty-one (31) to sixty (60) days, sixty-one (61) to ninety (90) days, ninety-one (91) to one-hundred-twenty (120) days, and more than one-hundred-twenty (120) days;
(xi) the number of inmates currently housed in punitive segregation, who have been held there, consecutively, for: one (1) to thirty (30) days, thirty-one (31) to sixty (60) days, sixty-one (61) to ninety (90) days, ninety-one (91) to one-hundred-twenty (120) days, and more than one-hundred-twenty (120) days;
(xii) a plan and timeline detailing steps necessary to reduce the length of punitive segregation sentences and to reduce the number of inmates housed in punitive segregation;
(xiii) data related to the amount of recreation and out-of-cell time provided to inmates housed in punitive segregation; and
(xiv) any other information the Department or the Board deems relevant to the Board's assessment of punitive segregation in Department facilities.
(2) No later than June 1, 2016, the Department shall submit to the Board a report analyzing and recommending options to reduce persistent violence committed by inmates housed in or released from punitive segregation that use means other than extending punitive segregation confinement. The report shall:
(i) detail how its recommended solutions would support the goals of protecting the safety and wellbeing of staff and inmates, promoting the security of Department facilities, and facilitating successful reentry of inmates;
(ii) describe the measures the Department has already implemented or plans to implement, including programming and housing, as well as other measures it has considered;
(iii) include an assessment of the pros and cons of each option, and the various potential impacts of implementing each option, including any resources that may be needed; and
(iv) include a description of research conducted by the Department on effective disciplinary systems and alternatives to punitive segregation and the progress of Department efforts to identify viable alternative programs and locations to safely house and treat violent offenders.
(Amended City Record 12/24/2015, eff. 1/23/2016; repealed City Record 6/9/2021, eff. 11/1/2021; reinstated by Emergency Executive Order No. 297, 11/23/2021*)
* Editor's note: This section was repealed as of November 1, 2021, but was reinstated by Emergency Executive Order No. 297, dated November 23, 2021. Section 2 of Emergency Executive Order 297 provides: "Notwithstanding the repeal of Board of Correction minimum standards sections 1-16 and 1-17 (40 RCNY §§ 1-16 and 1-17) on November 1, 2021, I hereby direct that while this Emergency Executive Order, as extended, is in effect, such minimum standards sections 1-16 and 1-17 shall be deemed to continue to be in effect and applicable to the operations of the Department of Correction, as if such repeal had not been effectuated; provided that, in accordance with section 7 of Emergency Executive Order No. 241, minimum standard section 1-16(c)(l)(ii) shall be construed so that the Department of Correction may continue assigning eligible persons in custody under the age of 22 to Enhanced Supervision Housing."