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* Editor's note: Section 10 of the rule enacted on June 9, 2021, and effective on July 9, 2021, provides for impementation as follows:
The policies, procedures, criteria, programs, plans, reports, and forms required by this rule shall be developed, approved and implemented by the dates specified below. Unless otherwise stated, all time periods are computed from the effective date of these rules. Any provisions not specifically referenced below shall take effect as of the effective date of the rule.
§ 1-16 and 1-17, repealed
(a) Purpose. The primary objective of enhanced supervision housing (ESH) is to protect the safety and security of inmates and facilities, while promoting rehabilitation, good behavior, and the psychological and physical well-being of inmates. To accomplish these objectives, ESH is designed to separate from the general population those inmates who pose the greatest threats to the safety and security of staff and other inmates. It additionally seeks to promote the rehabilitation of ESH inmates by incentivizing good behavior and by providing necessary programs and therapeutic resources.
(b) Policy. An inmate may be confined in ESH if the inmate presents a significant threat to the safety and security of the facility if housed elsewhere. Such a determination shall only be supported by a finding that one of the following has occurred:
(1) the inmate has been identified as a leader of a gang and has demonstrated active involvement in the organization or perpetration of violent or dangerous gang-related activity;
(2) the inmate has demonstrated active involvement as an organizer or perpetrator of a gang-related assault;
(3) the inmate has committed a slashing or stabbing, has committed repeated assaults, has seriously injured another inmate, visitor, or employee, or has rioted or actively participated in inmate disturbances while in Department custody or otherwise incarcerated;
(4) the inmate has been found in possession of a scalpel or a weapon that poses a level of danger similar to or greater than that of a scalpel while in Department custody or otherwise incarcerated;
(5) the inmate has engaged in serious or persistent violence; or
(6) the inmate, while in Department custody or otherwise incarcerated, has engaged in repeated activity or behavior of a gravity and degree of danger similar to the acts described in paragraphs (1) through (5) of this subdivision, and such activity or behavior has a direct, identifiable and adverse impact on the safety and security of the facility, such as repeated acts of arson.
Provided, however, that, where the Department is permitted to consider an inmate's activity occurring or actions committed at a time when the inmate was incarcerated, such activity or actions must have occurred within the preceding five (5) years. Where the Department is permitted to consider an inmate's activity occurring or actions committed at a time when the inmate was not incarcerated, such activity or actions must have occurred within the preceding two (2) years.
(1) The following categories of inmates shall be excluded from ESH placement:
(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) Medical staff shall be permitted to review ESH placements and participate in placement review hearings. Consistent with these regulations, when ESH assignment 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 ESH placement or shall be moved from ESH to a more appropriate housing unit. This determination may be made at any time during the inmate's incarceration.
(3) Any inmate placed in ESH who evidences a mental or emotional disorder shall be seen by mental health services staff prior to or immediately upon ESH placement.
(4) The total number of inmates housed in ESH shall not exceed 250 at any time.
(d) Conditions, Programming and Services.
(1) To the extent the Department imposes restrictions on an ESH inmate that deviate from those imposed on inmates in the general population, such restrictions must be limited to those required to address the specific safety and security threat posed by that individual inmate.
(2) To the extent the Department seeks to limit an ESH inmate's access to contact visits, a hearing shall be held, as required by subdivision (g) of this section, which shall address the criteria set forth in subdivision (h) of 40 RCNY § 1-09 with regard to both the inmate and any individual visitors with whom the Department wishes to limit contact.
(3) No later than July 1, 2015, the Department shall provide ESH inmates with both voluntary and involuntary, as well as both in- and out-of-cell, programming aimed at facilitating rehabilitation, addressing root causes of violence, and minimizing idleness.
(4) All inmates in ESH shall be seen at least once each day by medical staff who shall make referrals to medical and mental health services where appropriate.
(1) Correction officers assigned to ESH shall receive forty (40) hours of special training designed to address the unique characteristics of ESH 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 ESH shall be assigned to steady posts.
(f) Notice of ESH Placement.
(1) When it is determined that an inmate should be confined in ESH, that inmate shall be given written notice of such determination within twenty-four (24) hours of placement. Inmates who are unable to read or understand such notice shall be provided with necessary assistance. Such notice shall:
(i) state the grounds relied on and the facts that support the inmate's ESH placement; (ii) inform the inmate of the individual restrictions the Department intends to impose during the inmate's ESH confinement;
(iii) notify the inmate of the upcoming ESH placement review hearing; and
(iv) inform the inmate of the right to review, prior to the placement hearing, the evidence relied upon by the Department, to appear at the hearing in person, to submit a written statement for consideration, to call witnesses, and to present evidence.
(g) Placement Review Hearing.
(1) Within three (3) business days of service of notice on an inmate of initial ESH placement and related restrictions, the Department shall conduct a hearing to adjudicate the inmate's ESH placement and the individual restrictions proposed. The hearing may not be adjourned except, in extenuating circumstances, by the inmate's documented request and may in no event be adjourned for longer than five (5) days.
(2) One or more hearing officers shall conduct the placement review hearing. Department staff who initially recommended the inmate for ESH placement or otherwise provided evidence to support the inmate's ESH placement shall not be eligible to serve as hearing officers at the inmate's placement review hearing.
(3) The placement review hearing shall consist of following:
(i) a review of the facts upon which the Department relies to place the inmate in ESH pursuant to subdivision (b) of this section, and a determination of whether such facts exist and whether they support, by a preponderance of the evidence, the conclusion that the inmate presents a current significant threat to the safety and security of the facility such that ESH is appropriate;
(ii) consideration of the time that has elapsed since the occurrence of the activity or behavior relied on by the Department to support ESH placement;
(iii) a review of the individual restrictions proposed by the Department and a determination of whether each is supported by evidence of the legitimate safety and security concerns related to that individual inmate;
(iv) consideration of any relevant information provided by medical staff;
(v) consideration of any credible and relevant evidence submitted or statements made by the inmate at the hearing; and
(vi) consideration of any other evidence deemed relevant to the ESH status determination or imposition of individual restrictions.
(4) The inmate shall be permitted to appear at the hearing in person, submit a written statement, call witnesses, and present evidence.
(5) In the following circumstances, the 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.
(6) If it is determined that the ESH placement and each related restriction are supported by a preponderance of the evidence, the placement and each supported restriction may be continued. Written notice shall be provided to the inmate outlining the bases for such determinations. If it is determined that ESH placement or imposition of any individual restrictions is unsupported by a preponderance of the evidence, ESH status or unsupported individual restrictions shall be terminated immediately.
(h) Periodic Review of Placement.
(1) The placement of an inmate in ESH shall be reviewed every forty-five (45) days to determine whether the inmate continues to present a significant threat to the safety and security of the facility if housed outside ESH such that continued ESH placement is appropriate.
(2) At least twenty-four (24) hours prior to such periodic review, inmates shall be notified of the pending review in writing and of the right to submit a written statement for consideration. Inmates who are unable to read or understand such notice shall be provided with necessary assistance.
(3) Periodic review of an inmate's ESH status shall consider the following, with conclusions recorded in a written report made available to the inmate within seven (7) days of the review: (i) the justifications for continued ESH placement;
(ii) the continued appropriateness of each individual ESH restriction and whether any such individual restrictions should be relaxed or lifted;
(iii) information regarding the inmate's subsequent behavior and attitude since ESH placement began, including participation in and availability of programming;
(iv) information regarding the effect of ESH placement or of individual ESH restrictions on the inmate's mental and physical health;
(v) any written statement submitted by the inmate for consideration;
(vi) any other factors that may favor retaining the inmate in or releasing the inmate from ESH or any other factors that may favor the lifting of individual ESH restrictions or continuing to impose individual ESH restrictions; and
(vii) if the inmate's ESH placement is to continue, any actions or behavioral changes that the inmate might undertake to further rehabilitative goals and facilitate the lifting of individual ESH restrictions or ESH release.
(4) At any time when deemed appropriate, an inmate may be evaluated and recommended for placement in a more appropriate housing unit outside ESH.
(i) Board Review of ESH Implementation.
(1) No later than sixty (60) days after ESH implementation and every sixty (60) days thereafter, the Department shall submit to the Board information related to implementation of ESH and the inmates housed there. This information shall include, but shall not be limited to:
(i) the number of inmates housed in ESH, both currently and since implementation;
(ii) the frequency with which each of the criteria set forth in subdivision (b) of this section is used to support ESH placement;
(iii) rates of violence in both ESH and the general population since implementation of ESH and rates of violence for comparable time periods prior to ESH implementation;
(iv) rates of use of force in both ESH and the general population since implementation of ESH;
(v) programming and mental health resources available to ESH inmates and the extent of inmate participation in each program and resource;
(vi) training received by correction officers assigned to ESH and the number of steady posts created in ESH;
(vii) the number of inmates initially assigned to ESH but whose ESH status was terminated in a placement review hearing;
(viii) the number of inmates released from ESH into the general population through periodic review or other ESH status review mechanisms; and
(ix) any other data the Department or the Board deems relevant to the Board's assessment of ESH.
(2) The Board shall review the information provided by the Department and any other information it deems relevant to the assessment of ESH. Eighteen (18) months after implementation of ESH and no later than two (2) years after implementation of ESH, the Board shall meet to discuss the effectiveness and continued appropriateness of ESH.
(Repealed City Record 6/9/2021, eff. 11/1/2021)