2022 -- H 7760

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LC005224

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RESTRICTIVE HOUSING AT

CORRECTIONAL FACILITIES ACT

     

     Introduced By: Representatives Felix, Kazarian, Williams, Alzate, Kislak, Morales,
Potter, Giraldo, Slater, and Craven

     Date Introduced: March 02, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

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GOVERNMENT" is hereby amended by adding thereto the following chapter:

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CHAPTER 56.4

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RESTRICTIVE HOUSING AT CORRECTIONAL FACILITIES ACT

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     42-56.4-1. Legislative intent.

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     (a) It is the policy of the State of Rhode Island that the department of corrections and the

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facilities it operates maintain safe, secure housing for all inmates.

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     (b) Restrictive housing should only be used:

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     (1) In circumstances that pose a clear and direct threat to the safety of persons or to the safe

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and secure operations of the facility;

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     (2) In the absence of alternatives to restrictive housing;

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     (3) For the shortest time possible; and

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     (4) With the least restrictive conditions possible.

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     42-56.4-2. Definitions.

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     As used in this chapter, unless the context indicates a different meaning or intent:

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     (1) "Administrative confinement" means any status or classification, except for disciplinary

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confinement, for prisoners whose conduct may pose a serious threat to life, self, staff, other

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prisoners, or the facility's security or orderly operation.

 

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     (2) "Basic necessities" means and includes weather-appropriate clothing and footwear;

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adequate food in compliance with medical and religious accommodations, with no more than

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twelve (12) hours between meals; access to drinking water and functioning sanitary fixtures; access

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to a shower and hygienic items; bedding; and ventilation.

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     (3) "Department" means the department of corrections.

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     (4) "Director" means the director of the department of corrections.

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     (5) "Disciplinary confinement" means punitive confinement of a prisoner based on

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violation of departmental rules, whether in the general population, a specialized housing unit, or

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elsewhere.

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     (6) "General population" means classification to maximum, medium, or minimum security

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with no restrictions placed on activities.

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     (7) "Member of a vulnerable population" means someone who:

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     (i) Is twenty-two (22) years of age or younger;

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     (ii) Is fifty-five (55) years of age or older;

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     (iii) Has a serious and persistent mental illness, as defined by the department of corrections,

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or a mental disability, as defined in § 40.1-5-2;

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     (iv) Has a developmental disability, as defined in § 40.1-1-8.1;

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     (v) Is pregnant, in the postpartum period, or has recently suffered a miscarriage or

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terminated a pregnancy; or

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     (vi) Has a significant auditory or visual impairment, or a serious medical condition that

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cannot be adequately treated in restrictive housing.

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     (8) "Protective custody" means any form of separation from a prison's general population

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for prisoners requiring additional protection for their own safety.

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     (9) "Restrictive housing" means any type of detention that involves:

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     (i) Removal of a prisoner from the general population, voluntarily or involuntarily;

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     (ii) Placement in a locked room or cell, whether alone or with another prisoner; or

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     (iii) The inability to leave the room or cell for the vast majority of the day, typically

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eighteen (18) hours or more, to include all forms of disciplinary confinement and administrative

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confinement.

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     (10) "Step-down plan" means an individualized program, developed by a coordinated,

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multidisciplinary team to include mental health, case management, and security practitioners, that

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describes:

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     (i) The specific behaviors that resulted in placement in restrictive housing;

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     (ii) The programs and services available to the prisoner to address that behavior and

 

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promote general rehabilitation;

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     (iii) An estimated timeframe for returning to a less-restrictive classification;

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     (iv) Incentives available in order that prisoners can earn additional privileges and an

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accelerated return to the general population; and

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     (v) A schedule for regular review of the plan and the prisoner's classification.

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     42-56.4-3. Restrictive housing, generally.

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     (a) The department shall maximize the amount of time that each prisoner in restrictive

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housing spends outside of the cell by providing, as appropriate, access to recreation, education,

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clinically appropriate treatment therapies, skill-building activities, and social interaction with staff

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and other inmates.

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     (b) Each prisoner entering restrictive housing must be seen and assessed by a qualified

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mental health professional or health care professional within seventy-two (72) hours of placement

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and at least every fourteen (14) days thereafter.

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     (c) For each placement in restrictive housing, the department shall document:

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     (1) The nature of the threat to safety and security posed by the prisoner;

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     (2) The impact any restrictions in conditions of confinement may have on their health; and

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     (3) All alternatives that may be available to safely deal with the threat, other than restrictive

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housing.

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     (d) Prisoners in restrictive housing shall have equal access to programming; personal

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belongings in cell, including food, legal and reading materials; commissary; medical and mental

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health care; legal assistance, including law library and notary services; and basic necessities as

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those in general population. If provision of any such service or belongings to an individual would

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create a significant and unreasonable risk to the safety and security of incarcerated persons, staff,

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or the facility, such services or belongings may be withheld, on an individual basis, until it

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reasonably appears that the risk has ended.

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     (e) Each decision to withhold services or entitlements under subsection (d) of this section

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shall be meaningfully reviewed within twenty-four (24) hours, and every seven (7) days thereafter,

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by the facility warden or the warden's designee and by a qualified mental health professional. Each

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review must consider the impact of continued deprivation of services or entitlements on the person's

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risk to safety and security, and the warden must articulate in writing, with a copy provided to the

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incarcerated person, the specific reason why the person currently poses an unreasonable risk to

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safety and security and why the particular services or entitlements must continue to be withheld.

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Written approval from the director shall be required for any deprivation of services or entitlements

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beyond three (3) days and every thirty (30) days thereafter.

 

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     (f) No prisoner shall be denied access to programming or work assignments solely on the

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basis of being in restrictive housing, and the department must offer programming to prisoners in

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restrictive housing that is substantially similar to programming offered to prisoners in the general

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population, including accommodating classwork and education in-cell. Additionally, the

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department must offer prisoners in restrictive housing additional out-of-cell, trauma-informed

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therapeutic programming aimed at promoting personal development, addressing underlying causes

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of problematic behavior resulting in placement in restrictive housing, and helping prepare for

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discharge from restrictive housing to general population and to the community.

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     (g) Prisoners in restrictive housing shall receive a daily visit from the senior correctional

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supervisor in charge of the unit, daily visits from a qualified health care professional, and visits

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from members of the program staff at least weekly.

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     42-56.4-4. Discipline; Disciplinary confinement.

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     (a) The department shall establish maximum penalties for each level of offense. These

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penalties should always include alternatives to disciplinary confinement. The maximum restrictive

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housing penalty for any single rule violation or any series of related rule violations shall be no more

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than fifteen (15) days.

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     (b) All penalties shall be proportioned to the offense.

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     (c) Disciplinary confinement shall only be considered for offenses involving violence,

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involving escape, or posing a threat to institutional safety by encouraging others to engage in such

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misconduct.

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     (d) All prisoners in disciplinary confinement shall receive a minimum of two (2) hours out-

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of-cell each day.

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     (e) No prisoner shall serve more than thirty (30) days in disciplinary confinement in a sixty

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(60) day period.

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     (f) No member of a vulnerable population shall be placed in disciplinary confinement for

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any period of time unless the individual presents an immediate and present danger and there is no

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reasonable alternative for placement. Such placement shall last only as long as necessary to find an

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alternative housing placement.

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     (g) A prisoner should not be placed in restrictive housing pending investigation of a

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disciplinary offense unless their presence in the general population would pose a danger to

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themselves, staff, other prisoners, or the public. A prisoner's placement in restrictive housing

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pending investigation shall be reviewed within twenty-four (24) hours by the director or the

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director's designee. No prisoner shall remain in investigative segregation for a longer period of time

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than the maximum term of disciplinary segregation permitted for the most serious offense charged.

 

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     42-56.4-5. Administrative confinement; Protective custody.

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     (a) Placement in administrative confinement is limited to individuals who pose an

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imminent threat to the security of the institution, shall only be considered when it serves a specific

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penological purpose, and must last no longer than necessary to address the specific reason(s) for

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placement.

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     (b) All prisoners in administrative confinement shall receive a minimum of four (4) hours

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out-of-cell each day.

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     (c) Each prisoner in administrative confinement must have their status reviewed by the

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classification board, director, or director's designee every seven (7) days for the first sixty (60) days

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of the prisoner's placement and at least every thirty (30) days after the first sixty (60) days.

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     (d) The department shall create an individualized step-down plan, as defined in § 42-56.4-

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2, no later than fourteen (14) days after each placement in administrative confinement. This step-

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down plan shall be shared with the prisoner unless specifically articulable security concerns require

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otherwise.

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     (e) Where possible, prisoners with serious mental illness should be diverted from

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administrative confinement and placed in a clinically appropriate alternative form of housing. Any

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prisoner with a serious mental illness placed in administrative confinement must receive intensive,

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clinically appropriate mental health treatment for the entirety of the placement in administrative

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confinement.

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     (f) No prisoner classified to protective status may be held in conditions more restrictive

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than those conditions allowed in administrative confinement.

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     42-56.4-6. Transitional administrative confinement and step-down housing.

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     (a) The department shall create a system of step-down and transitional housing and

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programming for prisoners who require additional assistance in transitioning from administrative

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confinement into the general population.

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     (b) Conditions in transitional step-down and transitional housing shall mirror, to the extent

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possible, those conditions allowed in the general population.

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     (c) At a minimum, prisoners in step-down and transitional housing shall receive six (6)

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hours of out-of-cell time each day.

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     42-56.4-7. Reporting.

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     The department of corrections shall issue a report to be made publicly available on the

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department's website one year after the passage of this act and by January 31 of each year thereafter,

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indicating the following, broken down by disciplinary, administrative, and transitional

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confinement:

 

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     (1) The number of prisoners in each institution placed in restrictive housing during the past

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year;

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     (2) The nature of the infractions and behaviors leading to the use of restrictive housing;

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     (3) The lengths of terms served in restrictive housing, including terms served consecutively

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and cumulatively;

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     (4) The race, ethnicities, gender, and religion of all prisoners placed in restrictive housing;

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and

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     (5) The number of members of a vulnerable population placed in restrictive housing, by

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category promulgated in the definition thereof listed in § 42-56.4-2(7).

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     SECTION 2. Section 42-35-1 of the General Laws in Chapter 42-35 entitled

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"Administrative Procedures" is hereby amended to read as follows:

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     42-35-1. Definitions.

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     As used in this chapter:

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     (1) Except as otherwise provided herein, "agency" means a state agency, authority, board,

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bureau, commission, department, district, division, institution, office, officer, quasi-public agency,

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or other political subdivisions created by the general assembly or the governor, other than the

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legislature or the judiciary, that is authorized by law of this state to make rules or to determine

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contested cases.

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     (2) "Agency action" means:

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     (i) The whole or part of an order or rule;

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     (ii) The failure to issue an order or rule; or

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     (iii) An agency's performing, or failing to perform, a duty, function, or activity or to make

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a determination required by law.

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     (3) "Agency head" means the individual in whom, or one or more members of the body of

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individuals in which, the ultimate legal authority of an agency is vested.

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     (4) "Agency record" means the agency rulemaking record required by § 42-35-2.3.

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     (5) "Contested case" means a proceeding, including but not restricted to, ratemaking, price

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fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required

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by law to be determined by an agency after an opportunity for hearing.

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     (6) "Electronic" means relating to technology having electrical, digital, magnetic, wireless,

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optical, electromagnetic, or similar capabilities.

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     (7) "Electronic record" means a record created, generated, sent, communicated, received,

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or stored by electronic means.

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     (8) "Final rule" means a rule promulgated under §§ 42-35-2.6 through 42-35-2.9, an

 

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emergency rule promulgated under § 42-35-2.10, or a direct, final rule promulgated under § 42-35-

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2.11.

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     (9) "Guidance document" means a record of general applicability developed by an agency

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which lacks the force of law but states the agency's current approach to, or interpretation of, law or

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describes how and when the agency will exercise discretionary functions. The term does not include

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records described in subdivisions (19)(i), (ii), (iii), or (iv).

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     (10) "Index" means a searchable list in a record of subjects and titles with page numbers,

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hyperlinks, or other connectors that link each index entry to the text to which it refers.

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     (11) "License" includes the whole or part of any agency permit, certificate, approval,

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registration, charter, or similar form of permission required by law, but it does not include a license

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required solely for revenue purposes.

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     (12) "Licensing" includes the agency process respecting the grant, denial, renewal,

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revocation, suspension, annulment, withdrawal, or amendment of a license.

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     (13) "Order" means the whole or a part of a final disposition, whether affirmative, negative,

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injunctive, or declaratory in form, of a contested case.

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     (14) "Party" means each person or agency named or admitted as a party, or properly seeking

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and entitled as of right to be admitted as a party.

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     (15) "Person" means any individual, partnership, corporation, association, the department

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of environmental management, governmental subdivision, or public or private organization of any

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character other than an agency.

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     (16) "Promulgate," with respect to a rule, means the process of writing a new rule, or

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amending or repealing an existing rule. "Promulgation" has a corresponding meaning. The process

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of "promulgation" begins with the filing of the notice of proposed rulemaking under § 42-35-2.7

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and ends upon the effective date of the rule. "Promulgate" also includes the completion of the

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rulemaking process for emergency rules (§ 42-35-2.10) or direct final rules (§ 42-35-2.11), if

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applicable.

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     (17) "Reasonable charge" means the lowest, customary charge for a service.

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     (18) "Record" means information that is inscribed on a tangible medium or that is stored

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in an electronic or other medium and is retrievable in perceivable form.

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     (19) "Rule" means the whole or a part of an agency statement of general applicability that

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implements, interprets, or prescribes law or policy or the organization, procedure, or practice

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requirements of an agency and has the force of law. The term includes the amendment or repeal of

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an existing rule. The term is used interchangeably in this chapter with the term "regulation." The

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term does not include:

 

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     (i) A statement that concerns only the internal management of an agency and which does

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not affect private rights or procedures available to the public individuals under the custody or

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supervision of the department of corrections shall be considered members of the public for the

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purposes of this chapter, except where disclosure of any rule or portion of a rule would endanger

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the public welfare and security, pursuant to § 38-2-2(4)(F);

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     (ii) An intergovernmental or interagency memorandum, directive, or communication that

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does not affect private rights or procedures available to the public;

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     (iii) An opinion of the attorney general, or an opinion of the ethics commission pursuant to

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§ 36-14-11;

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     (iv) A statement that establishes criteria or guidelines to be used by the staff of an agency

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in performing audits, investigations, or inspections, settling commercial disputes, negotiating

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commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria

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or guidelines would enable persons violating the law to avoid detection, facilitate disregard of

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requirements imposed by law, or give an improper advantage to persons that are in an adverse

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position to the state;

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     (v) A form developed by an agency to implement or interpret agency law or policy; or

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     (vi) A guidance document.

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     (20) "Sign" means, with present intent, to authenticate a record:

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     (i) To execute a tangible symbol; or

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     (ii) To attach to or logically associate with the record an electronic symbol, sound, or

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process.

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     (21) "Small business" shall have the same meanings that are provided for under 13 C.F.R.,

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Pt. 121, as may be amended from time to time.

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     (22) "Small business advocate" means the person appointed by the chief executive officer

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of the commerce corporation as provided in § 42-64-34.

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     (23) "State register" means the publication required under chapter 8.2 of title 42.

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     (24) "Website" means a website on the internet or other similar technology or successor

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technology that permits the public to search a database that archives materials required to be

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published or exhibited by the secretary of state or an agency under this chapter.

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     (25) "Writing" means a record inscribed on a tangible medium. "Written" has a

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corresponding meaning.

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- RESTRICTIVE HOUSING AT

CORRECTIONAL FACILITIES ACT

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     This act would establish conditions, policies and procedures for the restrictive housing of

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inmates at correctional facilities in Rhode Island with the least restrictive conditions possible, the

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guidelines and restrictions for disciplinary confinement, transitional disciplinary confinement and

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step-down housing. This act would also require publicly available reporting of restrictive housing

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statistics on the website of the department of corrections on an annual basis.

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     This act would take effect upon passage.

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