2024 -- S 3053 | |
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LC006078 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2024 | |
____________ | |
A N A C T | |
RELATING TO STATE AFFAIRS AND GOVERNMENT -- REFORM RESTRICTIVE | |
CONFINEMENT ACT | |
| |
Introduced By: Senator Jonathon Acosta | |
Date Introduced: May 06, 2024 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND |
2 | GOVERNMENT" is hereby amended by adding thereto the following chapter: |
3 | CHAPTER 56.4 |
4 | REFORM RESTRICTIVE CONFINEMENT ACT |
5 | 42-56.4-1. Definitions. |
6 | As used in this chapter, unless the context indicates a different meaning or intent: |
7 | (1) "Administrative confinement" means any status or classification, except for disciplinary |
8 | confinement, for prisoners whose conduct may pose a serious threat to life, self, staff, other |
9 | prisoners, or the facility's security or orderly operation. |
10 | (2) "Basic necessities" means and includes weather-appropriate clothing and footwear; |
11 | adequate food in compliance with medical and religious accommodations, with no more than |
12 | twelve (12) hours between meals; access to drinking water and functioning sanitary fixtures; access |
13 | to a shower and hygienic items; bedding; and ventilation. |
14 | (3) "Cell" means any room, area or space that is primarily used for the confinement of |
15 | prisoners; or any room, area or space that is less than four hundred square feet (400 sq. ft.), |
16 | regardless of use or purpose; or any indoor room that is solely accessible to one prisoner at a time. |
17 | Shared spaces whose primary purpose is congregate social interaction, education, programming, |
18 | rehabilitation, or physical and psychological wellness, including recreation areas, classrooms, |
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1 | libraries, and spaces used for medical evaluation and treatment, shall not constitute "cells." |
2 | (4) "Department" means the department of corrections. |
3 | (5) "Director" means the director of the department of corrections. |
4 | (6) "Disciplinary confinement" means punitive confinement of a prisoner based on |
5 | violation of departmental rules, whether in the general population, a specialized housing unit, or |
6 | elsewhere. |
7 | (7) "General population" means classification to maximum, medium, or minimum security |
8 | with no restrictions placed on activities or privileges. |
9 | (8) "Member of a vulnerable population" means someone who: |
10 | (i) Has a serious and persistent mental illness, as defined by the department of corrections, |
11 | or a psychiatric disability, as defined in § 40.1-5-2; |
12 | (ii) Has a developmental disability, as defined in § 40.1-1-8.1; |
13 | (iii) Is pregnant, in the postpartum period, or has recently suffered a miscarriage or |
14 | terminated a pregnancy; or |
15 | (iv) Has a significant auditory or visual impairment, or a serious medical condition that |
16 | cannot be adequately treated in restrictive housing or which is medically contraindicated to |
17 | placement in restrictive housing. |
18 | 42-56.4-2. Discipline -- Disciplinary confinement. |
19 | (a) The department shall establish maximum penalties for each level of offense. The |
20 | maximum restrictive housing penalty for any single rule violation or any series of related rule |
21 | violations shall be no more than fifteen (15) days. |
22 | (b) All prisoners in disciplinary confinement shall receive a minimum of two (2) hours |
23 | out-of-cell each day, except in the case of a lockdown. In no event shall a lockdown last more than |
24 | twenty-four (24) hours. |
25 | (c) No prisoner shall serve more than fifteen (15) days in disciplinary confinement in a |
26 | thirty (30) day period. |
27 | (d) Any prisoner that is not in disciplinary confinement must be provided with three (3) or |
28 | more hours of out-of-cell time. |
29 | 42-56.4-3. Reporting. |
30 | (a) The department of corrections shall issue a report ("annual restrictive housing report") |
31 | to be made publicly available on the department's website one year after the effective date of this |
32 | chapter and by January 31 of each year thereafter, containing the following information, broken |
33 | out by disciplinary, administrative, and transitional confinement: |
34 | (1) The number of prisoners in each institution placed in restrictive housing during the past |
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1 | year; |
2 | (2) The nature of the infractions and behaviors leading to the use of restrictive housing; |
3 | (3) The lengths of terms served in restrictive housing, including terms served consecutively |
4 | and cumulatively; |
5 | (4) The races, ethnicities, genders, and religions of all prisoners placed in restrictive |
6 | housing; |
7 | (5) The number of members of a vulnerable population placed in restrictive housing, by |
8 | category promulgated in the definition thereof listed in § 42-56.4-2; and |
9 | (6) The average weekly out-of-cell time provided to prisoners in each category of |
10 | restrictive housing. |
11 | (b) The restrictive housing oversight committee, as created in § 42-26-20, may require the |
12 | department to publish additional information, in addition to the fields delineated by statute, in the |
13 | annual restrictive housing report. |
14 | 42-56.4-4. Declaratory judgment. |
15 | (a) Any prisoner may bring an action for declaratory judgment in the superior court of |
16 | Providence county, when it is alleged that: |
17 | (1) The department of corrections or an officer thereof failed to perform a duty enjoined |
18 | upon it by this chapter, or acted in violation of lawful procedure as required by this chapter; or |
19 | (2) A department rule, or its threatened application, interferes with or impairs, or threatens |
20 | to interfere with or impair, the legal rights or privileges of the plaintiff under this chapter or the |
21 | state or federal Constitution. |
22 | (b) A declaratory judgment may be rendered whether or not the plaintiff has requested the |
23 | agency to pass upon the validity or applicability of the rule in question. |
24 | SECTION 2. Chapter 42-26 of the General Laws entitled "Public Safety Grant |
25 | Administration Office" is hereby amended by adding thereto the following section: |
26 | 42-26-20. Restrictive housing oversight committee. |
27 | (a) There is hereby created within the public safety grant administration office, pursuant to |
28 | the provisions of § 42-26-7, the restrictive housing oversight committee ("committee") for the |
29 | purpose of monitoring the use of restrictive housing at the department of corrections. |
30 | (b) The committee shall consist of the following five (5) members who shall assemble |
31 | annually or more often at the call of the chairperson or upon petition of a majority of its members: |
32 | (1) One who has been previously sentenced to spend time in restrictive housing, appointed |
33 | by the Black, Latino, Indigenous, Asian-American, and Pacific Islander Caucus of the general |
34 | assembly; |
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1 | (2) One who has expertise in law and a demonstrated interest in advancing the rights and |
2 | welfare of incarcerated persons, appointed by the speaker of the house of representatives; |
3 | (3) One who has expertise in the provision of mental health care to incarcerated persons or |
4 | formerly incarcerated persons, appointed by the president of the senate; |
5 | (4) One who has a demonstrated interest in advancing the rights and welfare of incarcerated |
6 | persons appointed by the governor; and |
7 | (5) The director of the department of corrections, or designee. |
8 | (c) A chair of the committee shall be selected by the members of the committee. |
9 | (d) Of the members first appointed to the committee, two (2) members shall serve a term |
10 | of two (2) years, two (2) members shall serve a term of one year, and thereafter, members shall |
11 | serve a term of two (2) years. Members shall continue to serve until their successor is duly |
12 | appointed and qualified. Any vacancy on the oversight committee shall be filled in the same manner |
13 | as the original appointment. |
14 | (e) The committee shall perform the following functions: |
15 | (1) Appoint a restrictive housing ombudsperson ("ombudsperson") based on whatever |
16 | procedure is determined by the committee; |
17 | (2) Review and supervise the actions of the ombudsperson; |
18 | (3) Meet not less than quarterly to bring matters to the ombudsperson's attention and to |
19 | consult on their services, findings and recommendations; and |
20 | (4) Convene semiannual public hearings to discuss the ombudsperson's services, findings |
21 | and recommendations. |
22 | (f) The ombudsperson shall be empowered to: |
23 | (1) Receive and investigate complaints related to incarcerated persons' health, safety, |
24 | welfare, and rights; |
25 | (2) Identify issues within the department of corrections related to restrictive housing; |
26 | (3) Ensure compliance with relevant statutes, rules, and policies pertaining to restrictive |
27 | housing; |
28 | (4) Provide information to inmates, probationers, and parolees, and their families related |
29 | to restrictive housing; and |
30 | (5) Promote public awareness and understanding of the rights and responsibilities of |
31 | individuals in prison and conditions related to restrictive housing. |
32 | (g) The ombudsperson shall conduct random biannual inspections of restrictive housing |
33 | areas in each facility, including cells, recreation areas, and programming spaces, and shall visit |
34 | different facilities on each inspection. Neither the committee nor the ombudsperson shall announce |
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1 | an inspection to any individual or entity outside of the committee before the inspection occurs. The |
2 | department shall ensure full access to the facility, inmates, and staff as part of these inspections |
3 | consistent with this section. |
4 | (h) All oral and written communications, and records relating to such communications |
5 | between a person in the custody of the department of corrections and the ombudsperson or |
6 | committee, including, but not limited to, the identity of a complainant, the details of the |
7 | communications, and the ombudsperson's findings shall be confidential and shall not be disclosed |
8 | without the consent of such person, except that the committee or ombudsperson may disclose |
9 | without the consent of such person general findings or policy recommendations based on such |
10 | communications; provided no individually identifiable information is disclosed. |
11 | (i) Notwithstanding any provision of the general laws concerning the confidentiality of |
12 | records and information, the ombudsperson shall have access to, including the right to inspect and |
13 | copy, any non-privileged records necessary to carry out their responsibilities. |
14 | (j) In the performance of the responsibilities provided for in this section, the ombudsperson |
15 | may communicate privately with any person in the custody of the department of corrections. Such |
16 | communications shall be confidential except as provided in this section. |
17 | (k) Members of the committee and ombudsperson shall meet with the governor and the |
18 | director of the department of corrections at least two (2) times each year to report on the work and |
19 | findings of the committee. |
20 | (l) A majority of the members appointed to the committee shall constitute a quorum, which |
21 | shall be necessary for the committee to conduct business. A majority vote of the members present |
22 | shall be required for action of the committee. |
23 | (m) The general assembly shall annually appropriate such sums as it may deem necessary |
24 | for the payment of any ombudsperson's salary and for the payment of office expenses and other |
25 | actual expenses incurred by the committee or any ombudsperson's in the performance of their |
26 | duties; and the state controller is hereby authorized and directed to draw their orders upon the |
27 | general treasurer for the payment of such sum or sums, or so much thereof, as may from time to |
28 | time be required, upon receipt by them of proper vouchers approved by any ombudsperson's or |
29 | committee. |
30 | SECTION 3. Section 42-35-1 of the General Laws in Chapter 42-35 entitled |
31 | "Administrative Procedures" is hereby amended to read as follows: |
32 | 42-35-1. Definitions. |
33 | As used in this chapter: |
34 | (1) Except as otherwise provided herein, “agency” means a state agency, authority, board, |
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1 | bureau, commission, department, district, division, institution, office, officer, quasi-public agency, |
2 | or other political subdivisions created by the general assembly or the governor, other than the |
3 | legislature or the judiciary, that is authorized by law of this state to make rules or to determine |
4 | contested cases. |
5 | (2) “Agency action” means: |
6 | (i) The whole or part of an order or rule; |
7 | (ii) The failure to issue an order or rule; or |
8 | (iii) An agency’s performing, or failing to perform, a duty, function, or activity or to make |
9 | a determination required by law. |
10 | (3) “Agency head” means the individual in whom, or one or more members of the body of |
11 | individuals in which, the ultimate legal authority of an agency is vested. |
12 | (4) “Agency record” means the agency rulemaking record required by § 42-35-2.3. |
13 | (5) “Contested case” means a proceeding, including but not restricted to, ratemaking, price |
14 | fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required |
15 | by law to be determined by an agency after an opportunity for hearing. |
16 | (6) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, |
17 | optical, electromagnetic, or similar capabilities. |
18 | (7) “Electronic record” means a record created, generated, sent, communicated, received, |
19 | or stored by electronic means. |
20 | (8) “Final rule” means a rule promulgated under §§ 42-35-2.6 through 42-35-2.9, an |
21 | emergency rule promulgated under § 42-35-2.10, or a direct, final rule promulgated under § 42-35- |
22 | 2.11. |
23 | (9) “Guidance document” means a record of general applicability developed by an agency |
24 | which lacks the force of law but states the agency’s current approach to, or interpretation of, law |
25 | or describes how and when the agency will exercise discretionary functions. The term does not |
26 | include records described in subdivisions (19)(i), (ii), (iii), or (iv). |
27 | (10) “Index” means a searchable list in a record of subjects and titles with page numbers, |
28 | hyperlinks, or other connectors that link each index entry to the text to which it refers. |
29 | (11) “License” includes the whole or part of any agency permit, certificate, approval, |
30 | registration, charter, or similar form of permission required by law, but it does not include a license |
31 | required solely for revenue purposes. |
32 | (12) “Licensing” includes the agency process respecting the grant, denial, renewal, |
33 | revocation, suspension, annulment, withdrawal, or amendment of a license. |
34 | (13) “Order” means the whole or a part of a final disposition, whether affirmative, negative, |
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1 | injunctive, or declaratory in form, of a contested case. |
2 | (14) “Party” means each person or agency named or admitted as a party, or properly |
3 | seeking and entitled as of right to be admitted as a party. |
4 | (15) “Person” means any individual, partnership, corporation, association, the department |
5 | of environmental management, governmental subdivision, or public or private organization of any |
6 | character other than an agency. |
7 | (16) “Promulgate,” with respect to a rule, means the process of writing a new rule, or |
8 | amending or repealing an existing rule. “Promulgation” has a corresponding meaning. The process |
9 | of “promulgation” begins with the filing of the notice of proposed rulemaking under § 42-35-2.7 |
10 | and ends upon the effective date of the rule. “Promulgate” also includes the completion of the |
11 | rulemaking process for emergency rules (§ 42-35-2.10) or direct final rules (§ 42-35-2.11), if |
12 | applicable. |
13 | (17) “Reasonable charge” means the lowest, customary charge for a service. |
14 | (18) “Record” means information that is inscribed on a tangible medium or that is stored |
15 | in an electronic or other medium and is retrievable in perceivable form. |
16 | (19) “Rule” means the whole or a part of an agency statement of general applicability that |
17 | implements, interprets, or prescribes law or policy or the organization, procedure, or practice |
18 | requirements of an agency and has the force of law. The term includes the amendment or repeal of |
19 | an existing rule. The term is used interchangeably in this chapter with the term “regulation.” The |
20 | term does not include: |
21 | (i) A statement that concerns only the internal management of an agency and which does |
22 | not affect private rights or procedures available to the public. Individuals under the custody or |
23 | supervision of the department of corrections shall be considered members of the public for the |
24 | purposes of this chapter, except where disclosure of any rule or portion of a rule would endanger |
25 | the public welfare and security, pursuant to § 38-2-2(4)(F); |
26 | (ii) An intergovernmental or interagency memorandum, directive, or communication that |
27 | does not affect private rights or procedures available to the public; |
28 | (iii) An opinion of the attorney general, or an opinion of the ethics commission pursuant to |
29 | § 36-14-11; |
30 | (iv) A statement that establishes criteria or guidelines to be used by the staff of an agency |
31 | in performing audits, investigations, or inspections, settling commercial disputes, negotiating |
32 | commercial arrangements, or defending, prosecuting, or settling cases, if disclosure of the criteria |
33 | or guidelines would enable persons violating the law to avoid detection, facilitate disregard of |
34 | requirements imposed by law, or give an improper advantage to persons that are in an adverse |
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1 | position to the state; |
2 | (v) A form developed by an agency to implement or interpret agency law or policy; or |
3 | (vi) A guidance document. |
4 | (20) “Sign” means, with present intent, to authenticate a record: |
5 | (i) To execute a tangible symbol; or |
6 | (ii) To attach to or logically associate with the record an electronic symbol, sound, or |
7 | process. |
8 | (21) “Small business” shall have the same meanings that are provided for under 13 C.F.R., |
9 | Pt. 121, as may be amended from time to time. |
10 | (22) “Small business advocate” means the person appointed by the chief executive officer |
11 | of the commerce corporation as provided in § 42-64-34. |
12 | (23) “State register” means the publication required under chapter 8.2 of title 42. |
13 | (24) “Website” means a website on the internet or other similar technology or successor |
14 | technology that permits the public to search a database that archives materials required to be |
15 | published or exhibited by the secretary of state or an agency under this chapter. |
16 | (25) “Writing” means a record inscribed on a tangible medium. “Written” has a |
17 | corresponding meaning. |
18 | SECTION 4. 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 -- REFORM RESTRICTIVE | |
CONFINEMENT ACT | |
*** | |
1 | This act would establish a restrictive housing oversight committee for the purpose of |
2 | monitoring the use of restrictive housing, as well as disciplinary confinement at the department of |
3 | corrections. This act would also authorize the committee to hire an ombudsperson to assist in its |
4 | oversight duties. |
5 | This act would take effect upon passage. |
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