The New York Law Everyone Is Watching
This story was published with Solitary Watch, a nonprofit watchdog group that investigates, documents, and disseminates information on the use of solitary confinement in US prisons and jails.
One year after New York’s HALT Solitary Confinement Act took effect, incarcerated people and advocates have filed suit against the Department of Corrections and Community Supervision (DOCCS) for failing to comply with the law.
In 2021, after nearly a decade of advocacy efforts, state lawmakers passed Correctional Law § 137, better known as the HALT Solitary Confinement Act. HALT limits solitary confinement to 15 consecutive days or 20 days within a 60-day period. If a person’s punitive sentence exceeds 15 days, the person must be transferred to a Residential Rehabilitation Unit (RRU), which is supposed to provide more out-of-cell time and group programs. The HALT law also bans even short-term solitary for people with serious mental illness and other vulnerable groups.
If fully implemented, the HALT Solitary law would transform its prison system and free thousands of incarcerated people from torturous isolation. But prisons are highly change-resistant institutions, and implementation of the law may present an even bigger challenge than its passage. (A similar law in New Jersey has yet to be implemented.)
What happens in New York may have national impact, since the HALT law has become a model for advocates seeking to limit the use of solitary in their states. Within the past two years, eight other states have introduced similar legislation to limit solitary to no more than 15 days. They are often called “Mandela bills” after former political prisoner and South African president Nelson Mandela, who spent 18 years in solitary confinement, which he described as “the most forbidding aspect of prison life.” The United Nations adopted the Mandela Rules for the treatment of incarcerated people in 2015. These rules recommended that solitary be used as a last resort, not a first response. Two months after New York passed HALT, Connecticut became the third state to legislate limits on time in isolation.
Because New York’s law went into effect on March 1, 2022, a lot is riding on whether it succeeds or fails. “Everyone’s watching what happens in New York,” Jessica Sandoval, director of the Unlock the Box campaign, told Solitary Watch and The Nation. “Failure would discourage others from imagining something different, or trying to draft or even get a sponsor in a regressive state legislature,” Sandoval added, noting how other states used HALT to drum up support for similar bills.
So far, advocates and currently and formerly incarcerated people say there has been a serious discrepancy between the law’s passage and its implementation. As more information emerges, including personal accounts from incarcerated people, advocates are learning that continued vigilance is needed. “HALT is in the implementation process,” said Sandoval. “We will continue to watch and make the necessary moves to right any wrongdoing.”
HALT places strict limits on the acts that allow prison officials to isolate a person for more than three consecutive days or six days within a 30-day period. Those acts are limited to causing or attempting to cause serious injury; compelling another person into a sexual act; extortion; coercing a person to violate prison rules; leading, organizing, inciting or attempting to incite a riot, insurrection or other major disturbance; procuring dangerous contraband; or escaping.
Luis Garcia hasn’t committed any of those serious acts, yet he has already spent over 40 days in isolation. In September 2022, Garcia, a 40-year-old with mental illness, was incarcerated in the Residential Mental Housing Unit (RMHU), a unit for people with serious mental illness jointly operated by the DOCCS and the state’s Office of Mental Health. According to officers, while in his cell, he threw an “unknown brown feces smelling liquid” that hit two officers. They both filed misbehavior reports charging two counts of assault on staff and two counts of an unhygienic act. He was transferred to another prison, where he was placed on suicide watch. The hearing about these tickets took place without him.
In October, a prison hearing officer found Garcia guilty of all charges and sentenced him to 730 days in the Special Housing Unit (SHU)—the prison’s punitive segregation unit. The officer’s written disposition of the case did not include a determination that Garcia’s alleged conduct was “so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility,” as outlined in the law.
Because of his mental health status, Garcia is serving his SHU sentence in another RMHU. Those who have previously been confined there call these units “solitary by another name.”
Garcia’s not the only one in extended segregation for an act not listed under the new law. In the six months after HALT took effect, prison staff issued more than 6,500 tickets that led to SHU sentences. Nearly 1,200 were for acts that did not meet the actions specified by the law. Two-thirds were for actions that may not have met the criteria.
As of April 1, 2023, the DOCCS confined 359 people in the SHU; 68 had been in the SHU for over 15 days. The DOCCS confined another 1,829 in the RRU; 1,407 had been there for over 15 days.
The New York Civil Liberties Union filed a lawsuit (Fields v. Annucci) on April 5 challenging the DOCCS’s use of extended segregation, or placement in solitary (including both the SHU and the RRU) for more than the three-day limit. The NYCLU named Garcia and Fuquan Fields, who was sentenced to 180 days in the SHU, as plaintiffs in the suit. The complaint charges that the DOCCS continues to subject hundreds of people to SHU sentences of more than three days for acts that are not explicitly listed by the law. They are seeking class-action status, which would encompass all state prisoners who have been or will in the future be placed in segregation for more than three consecutive days or six days within any 60-day period.
As of April 1, 2023, the DOCCS confined 359 people in the SHU; 68 had been in the SHU for over 15 days. The DOCCS confined another 1,829 in the RRU; 1,407 had been there for over 15 days.
The New York Civil Liberties Union filed a lawsuit (Fields v. Annucci) on April 5 challenging the DOCCS’s use of extended segregation, or placement in solitary (including both the SHU and the RRU) for more than the three-day limit. The NYCLU named Garcia and Fuquan Fields, who was sentenced to 180 days in the SHU, as plaintiffs in the suit. The complaint charges that the DOCCS continues to subject hundreds of people to SHU sentences of more than three days for acts that are not explicitly listed by the law. They are seeking class-action status, which would encompass all state prisoners who have been or will in the future be placed in segregation for more than three consecutive days or six days within any 60-day period.
“Our lawsuit is asking for something quite simple, which is that DOCCS follow the law that our state legislature has passed,” Antony Gemmell, NYCLU’s director of detention and lead counsel, told The Nation and Solitary Watch.
DOCCS press officer Thomas Mailey said that the agency does not comment on pending litigation.
The Fields lawsuit focuses on the DOCCS’s classification of rules violations that have sent people to solitary confinement. But advocates, including currently incarcerated people, say that this is just one of many ways in which New York prisons are failing to implement HALT.
The law requires that those sentenced to more than 15 days in segregation be transferred to the RRU if two criteria are met—that their punitive sentence exceeds 20 days and that the DOCCS has established that the person committed one of the acts listed by the statute. But, says Gemmell, “DOCCS is taking an incredibly broad approach and essentially treating all Tier 3 violations as qualifying [for extended segregation].” Tier 3 violations can range from a physical assault to spitting water or throwing paper at an officer. “DOCCS is saying these are included in the sorts of conduct that is so heinous and destructive that it should warrant extended segregation. That is simply not what the law provides,” Gemmell said.
The statute also dictates that those in the RRU be offered a daily minimum of six hours of programming, services, treatment, meals and activities with other people, and at least one additional hour of recreation. It also dictates that those in the RRU have access to all of their personal property unless staff determine, on a case-by-case basis, that having a specific item is a security risk.
But numerous people have told The Nation and Solitary Watch that that hasn’t been their experience in the RRU. As I reported previously, Robert Adams was transferred to the RRU in March 2022 after a fight with another incarcerated man and an alleged assault on staff. (Adams maintains that the officer assaulted him after he had been handcuffed and that the assault charge was written to cover up the officer’s attack.)
On weekday mornings, the back door of his cell was automatically opened, allowing him to step into an adjoining outdoor pen for one hour of recreation. Later that morning, he was offered the opportunity to attend a program with eight to ten other men. During the three-hour program, their feet were shackled to the floor beneath their desks. In the afternoon, he was offered what’s called “therapeutic rec” in which men are brought to the day room, shackled to the floor, and allowed to watch three hours of television and movies together. Otherwise, he spent most of his day alone in his cell.
Lee Doane was sent to the RRU in September 2022. He told Solitary Watch and The Nation that he had covered the window of his cell door while using the toilet. When staff repeatedly demanded that he remove the covering, Doane cursed at them and threw a roll of toilet paper. He was charged with creating a disturbance, harassment, refusing a direct order, threats, visibility obstruction, violent conduct, and an unhygienic act, and sentenced to one year in segregation.
Doane spent 21 days in the SHU before being transferred to an RRU at Upstate Correctional Facility. Others around him had spent as long as 40 days in the SHU. Despite prison rules dictating that he be given his property within 72 hours, Doane waited another seven days for his belongings. “Seven days just sitting in this cell with nothing was pretty boring,” he wrote in a letter. But he feared that pressing the issue would result in the withholding of his property for even longer.
This practice isn’t limited to Upstate. A man at Auburn Correctional Facility wrote Solitary Watch and The Nation to say that when incarcerated men are sent to the SHU, staff tasked with packing their belongings typically omit items, sometimes as much as one-third of their property. Adams, too, said that he was not given his property for 60 days after arriving at the RRU.
At Upstate, Doane eschewed the morning program, which he also characterized as being chained to a classroom desk. Unlike Adams, who had been allowed into the outdoor pen once each day, Doane’s back door was opened three times each day, allowing him to step into a 12-by-12 concrete and steel enclosure. “So they legally abided by the dictates of the HALT Law by providing you with seven hours ‘technically’ out of your cell,” he wrote. Once a week, he was allowed to submit a library request slip for no more than two books and one magazine. Often, he received books on topics far from what he had requested.
Advocates with the New York Campaign for Alternatives to Isolated Confinement rally outside Governor’s Mario Cuomo’s office in December 2018. (Photo: Victoria Law)
Incarcerated people are not the only ones to question the programming offered at RRUs. In a recent report, the Correctional Association of New York, an independent prison monitoring nonprofit, reported that staff at Upstate Correctional Facility, built as a supermax prison, questioned the DOCCS’s decision to build a 550-bed RRU there rather than at prisons that already had programs, including dedicated program staff and space. The rural town of Malone is near the Canadian border, making it more difficult for the prison to find licensed psychologists, social workers, teachers, and other therapeutic staff.
Other prison staff questioned the decision to build classrooms in the basement storage area, which seemed more like a dungeon than a rehabilitative programming space.
Furthermore, prison staff can—and do—issue tickets to people in the RRU, which extend their time in isolation. Over half of the people that the Correctional Association interviewed at the Upstate RRU and over 41 percent at the RRU at Coxsackie Correctional Facility reported that staff had given them additional disciplinary tickets.
In an e-mail response, DOCCS spokesperson Thomas Mailey wrote, “All incarcerated individuals in RRUs are offered, but not obligated to take, the designated amount of out-of-cell time each day; there have been no grievances filed relating to lack of out-of-cell time.”
“The number one goal of the Department is to create and maintain an atmosphere where all incarcerated individuals, parolees, staff, volunteers and visitors feel secure,” his e-mail continued. “To that end, any decision to implement new policies is not made arbitrarily, nor is it taken lightly. Safety measures are never used as punishment or retaliation. RRU reviews are completed at least every 60 days. At the time of placement into an RRU, an individual is provided with a treatment and programming plan outlining the expectations of what they are to complete while in the unit. If an individual has not met the expectations for discharge after 60 days, the plan is modified to reflect current expectations and how to achieve them.”
Jessica Sandoval of Unlock the Box reminded us that the new law has been in effect for just over a year. “We have to give this a significant amount of time to be implemented properly,” she cautioned. “New York is better off with what is happening—even with problems in implementation—than they ever would have been without it.”
The prison systems in Colorado and North Dakota implemented significant policy changes to solitary, and Sandoval noted that, over time, violence decreased and officers themselves reported better health outcomes, better wellness, and more job satisfaction. But these outcomes weren’t immediate even in relatively small systems.
New York, which has nearly 32,000 state prisoners, has a much larger system than Colorado’ (with a prison population of fewer than 17,000) or North Dakota’s (with 1,788 prisoners).
For its part, the Fields suit asks the court to annul the DOCCS’s extended segregation policy and require the agency to comply with the law’s confinement criteria.
“If the confinement criteria are actually implemented, there will be fewer people confined and all of those other issues related to confinement will shrink because the population subject to it will be much smaller,” Jim Bogin, senior supervising attorney of Prisoners’ Legal Services and cocounsel in the Fields suit, told us. “The way the statutory criteria is written, only the most egregious acts permit confinement. But DOCCS has determined administratively that anything on their list of Tier III confinement is deemed to be satisfying the HALT criteria.”
“DOCCS does not have to use segregation the way it does,” Gemmell added. “There are states in this country and countries across the world where prison systems operate without imposing extended segregation on people. And there’s no real reason that DOCCS needs to be operating the way it does.”
Copyright c 2023 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.
Victoria Law is a freelance journalist who focuses on the intersections of incarceration, gender, and resistance. Her books include Resistance Behind Bars: The Struggles of Incarcerated Women, Prison By Any Other Name: The Harmful Consequences of Popular Reforms (co-authored with Maya Schenwar), and the forthcoming “Prisons Make Us Safer” and 20 Other Myths About Mass Incarceration.
The Nation Founded by abolitionists in 1865, The Nation has chronicled the breadth and depth of political and cultural life, from the debut of the telegraph to the rise of Twitter, serving as a critical, independent, and progressive voice in American journalism.
Please support progressive journalism. Get a digital subscription to The Nation for just $24.95!