American Correctional Assocation

American Correctional

Assocation

Restrictive Housing Standards

Open Hearing

ACA Winter Conference

New Orleans, Louisiana

January 2016

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American Correctional

Assocation

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RESTRICTIVE HOUSING PUBLIC HEARING AGENDA

Friday, January 22, 2016

8:30 AM- 12:30 PM

Bayside B & C (Level 4) Sheraton

New Orleans, Louisiana

8:30 – 9:00 AM Public Hearing

Welcoming Remarks, Overview of Agenda and Introductions

Brad Livingston, Chair of Standards Committee, and

Executive Director, Texas Department of Criminal Justice

9:00-9:03 AM James Gondles, Executive Director, American Correctional

Association

9:03-9:08 AM Dr. Mary Livers, ACA President, and Deputy Secretary, Louisiana

Office of Juvenile Justice

9:08 – 9:23 AM Rick Raemisch, Co-Chair of Restrictive Housing Ad-hoc

Committee, and Executive Director, Colorado Department of

Corrections

9:23-9:33 AM Gary Mohr, Co-Chair of Restrictive Housing Ad-hoc

Committee, and Director, Ohio Department of Correction

and Rehabilitation

9:33-9:43 AM Richard Stalder, ACA Past President; Secretary, Louisiana

Department of Public Safety and Correction, Retired

9:43-9:53AM Dr. Lannette Linthicum ACA President Elect; and Medical

Director, Texas Department of Criminal Justice

9:53 -10:03 AM John Rees

10:03-10:13 AM Ryan Quirk

10:13-10:23 AM Sister Sheila Richardson

10:23-10:33 AM Sarah Baumgartel

10:33-10:43 AM Leo Petrilli

10:43-10:53 AM Nia Weeks

10:53-11:03 AM Judith Resnik

11:03-11:13 AM Andrea Armstrong

11:13-11:23 AM Bruce Reilly

11:23-11:33 AM Amy Fettig

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11:33-11:43 AM Norris Henderson

11:43-11:53 AM David Haasenritter

11:53 AM- 12:30 PM Final Comments

12:30 PM Adjournment

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Table of Contents

ACA File Number Standard Type Page

Restrictive Housing Committee-001 Definitions Addition 7

Restrictive Housing Committee-002 ACI Outcome Measures Addition 17

Restrictive Housing Committee-003 ACI 4-4140 Revision 23




Restrictive Housing Committee-007 ACI New Standard 4-4249-1 Addition 34










Restrictive Housing Committee- 017 ACI 4-4260 Revision 72


Restrictive Housing Committee-019 ACI New Standard 4-4261-1 Addition 78














Restrictive Housing Committee-033 ACI New Standard #1 Addition 108







Restrictive Housing Committee-040 4-ALDF-2A-27 Revision 135








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Table of Contents (continued)

ACA File Number Standard Type Page




Restrictive Housing Committee-051 New Standard 4-ALDF-2A-56-1 Addition 153










Restrictive Housing Committee-061 4-ALDF-5C-04 Revision 165

Restrictive Housing Committee-062 ALDF New Standard #1 Addition 167

Restrictive Housing Committee-063 ALDF New Standard #2 Addition 169

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Restrictive Housing Committee – 001

Administrative status— a form of separation from the general population administered by the

classification committee or other authorized group when the continued presence of the inmate in the

general population would pose a serious threat to life, property, self, staff, or other inmates or to the

security or orderly running of the institution. Inmates pending investigation for trial on a criminal act or

pending transfer also can be included. (See Protective custody)

COMMENTS:

“Administrative Status - "Why see protective custody?"”

- Kathy Sligar

- Accreditation Administrator

- Colorado Department of Corrections

“PROPOSAL IN CAPS Administrative status— a form of separation from the general population

administered by the classification committee or other authorized group when the continued

presence of the inmate in the general population would pose a serious threat to life, property,

self, staff, or other inmates or to the security or orderly running of the institution. Inmates

pending investigation for trial on a criminal act, PENDING A DISCIPLINARY HEARING or

pending transfer also can be included.”

- David Haasenritter

- Army Corrections Command – Parole Authority

Disciplinary detention – a form of separation from the general population in which inmates committing

serious violations of conduct regulations are confined by the disciplinary committee or other authorized

group for short periods of time to individual cells separated from the general population. Placement in

detention only may occur after finding of a rule violation at an impartial hearing and when there is not an

adequate alternative disposition to regulate the inmate’s behavior. (See Protective Custody)

COMMENTS:

“Disciplinary Detention - "Should the short period of time be defined by maximum number of

days?" "Add 'disciplinary' before detention and delete 'only' before may and add 'only' after may.

"Why see protective custody?"”

- Kathy Sligar



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Restrictive Housing Committee – 001(continued)

Protective custody—form of separation from the general population for inmates requesting or requiring

protection from other inmates for reasons of health or safety. The inmate’s status is reviewed periodically

by the classification committee or other designated group.

COMMENTS:

“Protective Custody - "Recommend that Protective Custody not fall under the Restrictive

Housing umbrella unless offenders in protective custody are confined to a cell at least 22 hours

per day”

- Kathy Sligar



Restrictive Housing— a placement that requires an inmate to be confined to a cell at least 22 hours per

day.

COMMENTS:

“Restrictive Housing - "Recommend clarifying the definition to show that Administrative Status,

Disciplinary Status, and Protective Custody status fall under the umbrella of the Restrictive

Housing definition, when offenders in these status' are confined to a cell at least 22 hours per

day.”

- Kathy Sligar



“The Definition of restrictive housing is very limited in scope. It refers to a status; however,

throughout the standards it is used as an actual location. The limited scope does not give

considerations for placements relating to medical issues such as Psychiatric Close Observation

(PCO), and placement in negative airflow rooms for potential contagious disease. These are just

2 examples.”

- Christopher M. Klein

- Delaware Department of Corrections - Central Administration Building

“Not really clear who is and who is not in restrictive housing. I believe we need a definition

which says something like. Persons who are housed in their cells for 22 or more hours a day will

be considered housed in restrictive housing no matter their status.”

- Art Beeler

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Extended Restrictive Housing—Placement in housing that separates the offender from contact with

general population while restricting an offender/inmate to his/her cell for 22 hours per day and for 30

days or longer for the safe and secure operation of the facility.

COMMENTS:

“Extended Restrictive Housing—In accordance with international human right standards and a

growing movement in state legislatures, we recommend amending the definition of “Extended

restrictive housing” from “30 days or longer” to “longer than 15 days.” See, e.g., MR 44.”

- Jamelia Morgan

- ACLU National Prison Project

Serious Mental Illness— Psychotic, Bipolar, and Major Depressive Disorders and any other diagnosed

mental disorder (excluding substance use disorders) associated with serious behavioral impairment as

evidenced by examples of acute decompensation, self-injurious behaviors, multiple major rule infractions,

and mental health emergencies that requires an individualized treatment plan by a qualified mental health

professional.

COMMENTS:

“Serious Mental Illness- what is the definition of a mental health emergency? Does the SMI

definition include some or all personality disorders, or symptoms associated with personality

disorders?’

- Ryan Quirk

- Psychologist

- Washington State Department of Corrections

“Healthcare organizations define serious mental illness (SMI) in different ways, based upon

distinct perspectives and purposes (e.g., Society of Correctional Physicians [SCP], The National

Institute of Mental Health [NIMH], The National Commission on Correctional Health Care

[NCCHC], Substance Abuse and Mental Health Services Administration [SAMHSA]). Although

these differences are a natural reflection of an evolving field, they contribute to challenges in

developing consensus positions necessary to advance and standardize correctional mental

healthcare practice. Establishing a consistent definition of SMI in the correctional context is

important for epidemiological purposes, needs assessment, and mental health system planning.

Psychiatric disorders that include psychotic symptoms, at least on an intermittent basis, are

uniformly considered to meet criteria for SMI. Schizophrenia, schizoaffective disorder, and

delusional disorder are examples of such serious mental illnesses. Other mental or emotional

disorders (examples include major depression, bipolar disorder, and posttraumatic stress

disorder) that result in serious distress or serious functional impairment that substantially

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COMMENTS (continued):

interferes with or limits one or more major life activities, whether acute or chronic, almost

always meet criteria for SMI. Some prisoners with severe personality disorders, cognitive

disorders, or adjustment disorders will meet such criteria either temporarily or chronically.

Clinical judgment must always be employed in determining the appropriate care for individuals

whether or not they meet SMI criteria.”

- Renée Binder, M.D. - Saul Levin, M.D., M.P.A.

- President - CEO and Medical Director

- American Psychiatric Association - American Psychiatric Association

“Serious Mental Illness—we are concerned that focusing the proposed standards on a narrow

definition of “Serious Mental Illness” will lead to corrections systems ignoring individuals who

are vulnerable to the harms of extended restrictive housing/solitary confinement but who do not

have a formal “Serious Mental Illness” designation. The current definition of “Serious Mental

Illness” in the proposed standards reads as unduly restrictive when compared with generally

accepted definitions of this type. The definition may be read to exclude those prisoners who have

personality disorders, even in cases where these disorders impose functional impairments. We

propose that the Committee consider changing the definition of serious mental illness to include

specific Axis I diagnoses from the DSM-V, as well as any disorders that impose affective,

behavioral, or cognitive impairments.”

- Jamelia Morgan


“PROPOSAL IN CAPS Serious Mental Illness— Psychotic, Bipolar, and Major Depressive

Disorders, PERSONALITY DISORDER and any other diagnosed mental disorder (excluding

substance use disorders) associated with serious behavioral impairment as evidenced by

examples of acute decompensation, self-injurious behaviors, multiple major rule infractions, and

mental health emergencies that requires an individualized treatment plan by a qualified mental

health professional.”



“Will the definition of Serious Mental Illness replace mental illness in the ACI definition

section?”



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“Is there a need to separate SPMI from SMI? Often there can be seriously mentally ill offenders

who do not require much in the way of ongoing services except medication management. ”

- Art Beeler

Step-down Program—A system of review that establishes criteria to prepare an inmate for transition to

general population or the community. Individualized programs involve a coordinated, multidisciplinary

team approach that includes medical, mental health, case management, and security practitioners.

Alternative Meal Service—special foods provided to comply with the medical, religious, or security

requirements. Alternative meals always must be designed to ensure that basic health needs are met and

are provided in strict compliance with polices signed by the chief executive officer, the chief medical

officer, the registered dietician, and for the religious diets, by the appropriate religious leader.

COMMENTS:

“Alternative Meal Service—the current definition should also include a provision that the food be

palatable. See, e.g., Settlement Agreement, Peoples v. Fischer, 1:11-cv-02694-SAS (S.D.N.Y. Dec.

16, 2015), available at http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf.”

- Jamelia Morgan


“Alternative Meal Service: Since the definition defines the food and not the serving of food

should the word “service” be changed?”

- Massachusetts Department of Correction

Extended Restrictive Housing with Behavioral Health Treatment—Offenders who are placed in long

term Restrictive Housing to his or her cell for 22 hours per day and for 30 days or longer that are in need

of Behavioral health treatment and services.

COMMENTS:

“Extended RH w/Behavioral Health Treatment: The current definition specifies 15 days and this

should be 30 days for extended restrictive housing.”

- Andrew Albright

- Accreditation Manager

- Ohio Department of Rehabilitation and Corrections

http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf

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Multidisciplinary Services team— Provides integrated services by assessing the inmate needs; develop

an individualized plan and ensure that services are delivered in an effective manner to assist the inmate

for transition to general population or community.

- The team may include but is not limited to facility administrator, correctional staff, treatment

staffs, programming staff.

COMMENTS:

“I recommend for both the multidisciplinary services and treatment team definitions, a minimum

attendee requirement is specified - not providing a minimum expectation may create great

variances of practices for systems and also promote vast differences of opinions by auditors.”

- Andrew Albright



Multidisciplinary treatment team—To Provide an integrated team approach who members meet

together to develop and provide necessary health and behavioral health care services and treatment for

inmates.

The team may include psychologist, psychiatric practitioners, licensed social worker/licensed mental

health counselors, registered nurse, activity therapist, correctional staff.

COMMENTS:

“I recommend for both the multidisciplinary services and treatment team definitions, a minimum

attendee requirement is specified - not providing a minimum expectation may create great

variances of practices for systems and also promote vast differences of opinions by auditors.”

- Andrew Albright



GENERAL COMMENTS:

“In September of 2015 John Jay College, with support from the Jacob and Valeria Langeloth Foundation,

hosted a two day colloquium on reforming the use of social isolation in prisons attended by 15

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GENERAL COMMENTS (continued):

corrections administrators from state and large local jurisdictions and a like number of attorneys

advocates and academics associated with groups often critical of corrections practice with respect to the

use of social isolation.

As to serious mental illness, we are concerned that limiting the definition to serious mental illness may

diminish the recognition of and the treatment of the vast number of incarcerated persons suffering from

mental illness that does not rise to the level specified in the definition. The Committee should consider

additional language recognizing the need for consideration and treatment of those with less severe forms

of mental illness, particularly in the context of social isolation.

Additionally, we recommend that vulnerable populations including those with mental illness, intellectual

disabilities, serious cognitive impairments, juveniles (under 18), the infirm and elderly, should have

special protections to avoid the use of restrictive housing to the extent possible.

For these individuals, if placed in restrictive housing, no later than 72 hours following placement

measures to reduce their social isolation and ameliorate the risk from extreme isolation should begin.

Structured therapeutic activities such as psychiatric care should commence and adequate out of cell time

including opportunities for large muscle exercise should be provided.

We recommend that the definition of Alternative Meal Service include a provision that the alternative

meal must also be edible and minimally appetizing.”

- Martin Horn

- John Jay College of Criminal Justice

“Changes seem appropriate but will defer to my more experienced colleagues judgment.”

- Joe Vignati

- Deputy Commissioner

- Georgia Department of Juvenile Justice

“Can we continue to use terminology Disciplinary, Administrative, Mental Health or are we limited to the

term “Restrictive” housing units? If we can only use the term “restrictive”, how do we operationally

distinguish between the different categories of inmates that are disciplinary/administrative etc..?”

- Jimmie Barret

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“Is it possible to have a policy that is titled, “Restrictive Housing” and then have subcategories labeled

Administrative Segregation, Disciplinary Segregation, and Mental Health for clarification? What is the

purpose/intent of this change? Is it for semantics only? What is the definition of “Restrictive Housing”?”

- Jimmie Barret

“Currently, the Standards do not mention that state-run facilities must comply with the Americans with

Disabilities Act. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., established broad

protections for individuals with disabilities, prohibiting public entities from discriminating against them

and ensuring disabled individuals equal access and equal opportunity to services, programs, and

activities. Title II, 42 U.S.C. § 12132 provides that:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity. 42 U.S.C. § 12132. Of particular note here is that Title II’s

coverage of public entities also applies to services, programs, and activities provided in state prisons. Pa.

Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).”

- Jamelia Morgan


“Where appropriate, we have proposed additions to the Standards to incorporate the rights afforded to

prisoners with physical disabilities under the ADA. We also suggest adding important ADA-related

definitions to the proposed standards to help with clarity, including: Americans with Disabilities Act

(“ADA”)—landmark civil rights law that prohibits discrimination against individuals with disabilities

and guarantees that all disabled individuals receive equal access to services, and activities. Disability—

As defined under the ADA, “[t]he term ‘disability’ means, with respect to an individual--(A) a physical or

mental impairment that substantially limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment (as described in

paragraph (3)).” 42 U.S.C. § 12102(1).”

- Jamelia Morgan


“The term “major life activities include, but are not limited to, caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2).”

- Jamelia Morgan


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“Visual Impairment—any impairment in sight ranging from blindness to low vision. Hearing

Impairment—any impairment in hearing ranging from being hard of hearing to being deaf. Mobility

Impairment—any impairment or limitation in movement, which may require the use of an assistive device,

such as a wheelchair, walker, or cane.”

- Jamelia Morgan


“Reasonable Accommodation—a modification to a service, program, or activity that provides a qualified

prisoner with a disability equal access to and/or effective communication in the service, program, or

activity.”

- Jamelia Morgan


“Agree.”

- Dave Dormire

- MO Department of Corrections

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Standards for Adult Correctional Institutions,

4th

Edition (2003)

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Restrictive Housing Committee - 002

Manual: Adult Correctional Institutions (ACI)

Edition: Fourth

Standard: Outcome Measures for Restrictive Housing

Agency/Facility: ACA Restrictive Housing Committee

Facility Size: N/A

Accredited: N/A

Proposal Type: Addition

Existing Standard: None (ACI not currently a Performance-Based manual).

Proposal:

Outcome Measures

1. Number of inmates admitted to Restrictive Housing in the past 12 months divided by number of

inmates in the average daily population in the facility in the past 12 months.

2. Average daily population in Restrictive Housing in the past 12 months divided by the average

daily population of the facility in the past 12 months.

3. Number of inmates whose time in restrictive housing exceeded 15 days in the past 12 months

divided by number of admissions to restrictive housing in the past 12 months.



a. Outcome Measure for ACI 4-4255: Number of inmates whose time in restrictive housing

exceeded 30 days whose confinement was reviewed by the Warden/Superintendent or

designee in the past 12 months divided by number of admissions to restrictive housing in

the past 12 months.

b. Outcome Measure for ACI 4-4256: Number of inmates whose time in restrictive housing

exceeded 30 days who received a personal interview and for whom a report was prepared

by a mental health professional in the past 12 months divided by number of admissions

to restrictive housing in the past 12 months.



Number of inmates whose time in restrictive housing exceeded 180 days in the past 12

months divided by number of admissions to restrictive housing in the past 12 months.

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Restrictive Housing Committee-002(continued)

6. Number of inmates admitted to restrictive housing diagnosed with Serious Mental Illness in the

past 12 months divided by number of admissions to restrictive housing in the past 12 months.

A) Number of individual inmates placed in RH within the past 12 months divided by the

total number of admissions to RH with the past 12 months

B) Number of inmates who were admitted to RH in past 12 months that have had a

previous admission to RH within the last 36 months divided by the total number of

admissions to RH within the past 12 months.

Data Collection

A. Average length of stay in administrative status

B. Average length of stay in disciplinary detention

C. Number of incidents resulting in serious bodily injury to staff or inmates that take place in the

restrictive housing unit

D. Number of uses of force in restrictive housing units

E. Number of uses of chemical agents in restrictive housing units

F. Number of deaths in restrictive housing units

G. Number of sexual assaults/incidents in restrictive housing units

H. Number of assaults on Staff/inmates

I. number of disciplinary reports

J. number of self-injuries

K. number of psychological emergencies either staff or self-referred.

L. Number of inmates released from Restrictive Housing directly into general population

Number of inmates released from Restrictive Housing directly into the community

COMMENTS:

“How is this information to be interpreted by auditors? I suggest that these outcome measurements be

part of the facility as well as the central office audits, if applicable. I make this suggestion because the

placement and release from restrictive housing is rarely controlled at the facility level. I believe the

central office standards should include this assessment.”

- Susan J. Jones

- Warden – Retired


“What is the definition of a psychological emergency?”

- Ryan Quirk

- Psychologist


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“There should be a standard that sets an expectation with regard to the percentage of mentally ill inmates

who are in RH in comparison to the percentage of non-mentally ill inmates who are in RH. The

expectation is that those percentages should be identical, or close to identical. In other words, if inmates

are admitted to RH solely based on behavior that is uninfluenced by their mental illness, a mentally ill

inmate should have the same risk (not an increased risk) of being placed in RH, as any other inmate in

general population. The metric for this is the following:

Numerator:

Number of inmates admitted to RH who have a mental illness in a year/number of inmates admitted to RH

who do not have a mental illness in a year

Denominator:

Number of inmates in the population who have a mental illness/number of inmates in the population who

do not have a mental illness

This ratio should be equal to, or close to 1.0 if inmates are not being admitted to RH because of their

mental illness.”

- Marc F. Stern, MD, MPH

- Assistant Affiliate Professor

- School of Public Health, University of Washington

“APA recommends the following outcome measures:

• Percent of inmates in restricted housing units who are on the mental health caseload;

• Percent of inmates in restricted housing units who meet criteria for a serious mental illness (SMI);

• Percent of the total inmate population who are on the mental health caseload; and

• Percent of the total inmate population who meet criteria for a SMI.”




“Statistics and data collection is no doubt critical to ensure accountability and the effective management

of correctional units. Caution should be exercised, however. With individual jurisdiction reporting

requirements and ASCA data collection already in place, nuanced differences in the "type" of data

collected may become an undue burden on operators in the field and the true value of the information

gleaned from data collected lost in the pursuit of the information for its own sake.”

- Jennifer French

- New Castle Correctional Facility

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“WA DOC recommends the following data collection points be added.

Percent of offenders involved in congregate offender change programs.

Number of cell extractions.

Number of offenders assigned to Restrictive Housing for more than six months.”


“The proposed outcome measures indicate a review for offenders whose time exceeded 15 days, 30 days,

30 days who were reviewed by Warden, 30 days mental health report, 90 days, and 180 days. The

tracking will be fairly labor intensive. Also #6 requests the number of offenders admitted to RH with a

SMI diagnosis. Is the request referring to the number of offenders who entered RH with an SMI diagnosis

or who were diagnosed with SMI after admission to RH? And, #6. B. will be difficult.”

- Julie Stout

- Superintendent

- Rockville Correctional Facility

“#6 - As currently written numerator and denominator are same, should A be rewritten to state number of

individual inmates with serious mental illness within the past 12 months. Comments: Administrative

status, disciplinary detention, restrictive housing, and extended restrictive housing and associated data

should be calculated separately as they are utilized for differing behaviors.”

- Kathy Sligar



“For Measures 3, 4 and both parts of 5: I suggest the language read "time in restrictive housing

exceeded a consecutive XX days." Clarifying consecutive days makes the data collection on this process

easier to implement and addresses the issue of repeat offenders.”

- James M LeBlanc

- Secretary

- LA Department of Public Safety and Corrections Headquarters

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“I will suggest that outcome measure should have similar numerator and denominator, either number of

inmates ( undulicated count) or number of admissions. A numerator with undulicated count and

denominator with number of admissions will lead to artificially low percentage and will not tell the true

picture.”

- Raman Singh

“Outcome Measures 4a and 4b should be revised to more accurately capture the requirements set forth in

ACI 4-4256. We propose changing the language of these outcome measures to the following:

a. Number of prisoners whose time in restrictive housing exceeded 30 days whose confinement was

reviewed by the Warden/Superintendent or designee, and who were interviewed by a qualified mental

health professional who prepared a written report, in the past 12 months, divided by the number of

admissions to restrictive housing in the past 12 months.

b. Number of prisoners whose time in restrictive housing exceeded 30 days who received a personal

interview and for whom a report was prepared by a mental health professional in the past 12 months

divided by the number of prisoners whose time in restrictive housing exceeded 30 days.”

- Jamelia Morgan


“We also recommend expanding the data collected for restrictive housing units to include a broader

picture of conditions and actions in such units. In our policy and litigation work we’ve found the

following data outcomes to be critical for ongoing monitoring and management:

a) No, of cell extractions; b) No. of incidents requiring use of force; c) No. of incidents where restraints

were used (excluding the routine use of restraints for transport); d) No.of prisoners placed on suicide

watch; e) No. of suicides; f) No. of self-harm incidents; g) Number of prisoner-on-prisoner assaults; h)

Number of prisoner-on-staff assaults; i) No./nature of prisoner grievances; and j) No. of times restraints

were used (excluding the routine use of restraint for transport)”

- Jamelia Morgan


“This information is captured but not in a statistical report format. I do not support this proposal as the

amount of work to become compliant would be extensive.”

- Dave Dormire


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“Outcome measures need to be expanded to be like 2014 supplement App E ACA Health Care Outcome

Measures Technical Guidance. Expanding it will assist facilities what they are collecting, why, and what

the data should be used for. Each outcome measure should have a purpose, methodology outcome

measure calculation etc.”



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Edition: Fourth

Standard: 4-4140


Facility Size: N/A

Accredited: N/A

Proposal Type: Revision

Existing Standard: Segregation housing units provide living conditions that approximate those of the

general inmate population; all exceptions are clearly documented. Segregation cells/rooms permit the

inmates assigned to them to converse with and be observed by staff members.

Comment: None.

Protocols: None.

Process Indicators: None.

Proposal: Restrictive housing units provide living conditions that approximate those of the general

inmate population; all exceptions are clearly documented. Restrictive housing cells permit the inmates

assigned to them to converse with and be observed by staff members. Space is available either inside the

restrictive housing unit or external to the unit for treatment staff consultation with restrictive housing

inmates.

Comment: None.

Protocols: Written policy and procedure, special management policy; post orders.

Process Indicators: Observation. Inmate interviews. Sign in log for restrictive housing unit.

Blueprints. Documentation of exceptions.

COMMENTS:

“Process indicators include ensuring inmates have access to both indoor and outdoor recreation areas.

However, the standard does not require this. As far as I can see none of the revisions require that inmates

have access to outdoor recreation. I believe that the standards should come in line with federal court

decisions that have found that the absence of outdoor recreation is unconstitutional (Troy Anderson v.

State of Colorado, Department of Corrections - Judge R. Brooke Jackson, 2012”

- Susan J. Jones



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“The programming space should allow for sound privacy and appropriate safety for the clinician and

involved inmate.”




“Ensure access to confidential space/location? (or is that assumed?)”

- Ryan Quirk

- Psychologist


“Agree. Current Practice.”


“I believe the proposed Process Indicator may be attached to the incorrect standard (converse with and

be observed by staff, space available for treatment staff consultation, indoor and outdoor recreation?”

- Julie Stout

- Superintendent


“Protocols - should refer to Restrictive Housing policy NOT special management policy. Process

Indicators - Why would facilities need to show access to indoor and outdoor recreation areas for this

standard, it does not apply? Appropriate Process Indicators: blueprint and photos of the area and shift

logs or sign in logs documenting treatment staff visits.”

- Kathy Sligar



“Define "'treatment staff consultation ". Is recreation included here in "Process Indicators" to simulate

living conditions of general population?”

- Diane Murray Ward

- Director, Programs Res Management

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“Process indicator does not coincide with proposal of existing standard. Is this content referring to

recreation or treatment staff consultation? (Request further content for accurate interpretation)”

- Tori Raiford

- Statewide Restrictive Housing Coordinator

- On behalf of the Virginia Department of Corrections

“Suggest adding "confidential" the last sentence for consistency with healthcare standards: "Space is

available either inside the restrictive housing unit or external to the unit for confidential treatment staff

consultation with restrictive housing inmates." Additionally, during these challenging budget times this

standard will require resources to move offenders that are not available without jeopardizing security

and stability of prison operations. Process Indicators are not relative.”

- James M LeBlanc

- Secretary


“Enhance this standard to include provision that living conditions include access to natural light and a

view of the outdoors. Further, the treatment space for staff consultations should be reasonably private

and confidential and provide adequate space relative to the size of the population.”

- Jamelia Morgan


“In relation to the proposal, it does not seem clear as to why the process indicator cites recreation. It

would seem that logs activities and staffing assignments might be more appropriate.”



“The revised version of standard 4-4140 will make space available “either inside the restrictive housing

unit or external to the unit for treatment staff consultation with restrictive housing inmates.” This brings

the standard in line with the requirements to enable daily face-to-face interaction with uniformed and

civilian staff as outlined in ABA Standard 23-3.8(c)(iv).”

- Bruce Nicholson

“Agree to the extent our physical plant allows.”

- Dave Dormire


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“Proposed comment does not match standard.”



“When you say a consultation place for staff, it needs to be private enough that others cannot overhear

the conversations. I don’t know how many times I have been put in an “office” which was a converted

cell, but all of the ventilation etc. was tied together and the inmate telephone works wonders.”

- Art Beeler

“We are in compliance with recommended updates. Suggest process indicators be updated to match

proposal language.”

- Florida Department of Corrections

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Edition: Fourth

Standard: 4-4141


Facility Size: N/A

Accredited: N/A


Existing Standard: All cells/rooms in segregation provide a minimum of 80 square feet, of which 35

square feet is unencumbered space.

Comment: Segregated inmates are confined in cells/rooms for more extended periods during the

day. Therefore the cell/room must provide additional space for in-cell activity.

Protocols: None.


Proposal: All cells/rooms in restrictive housing provide a minimum of 80 square feet, and shall provide

35 square feet of unencumbered space for the first occupant and 25 square feet of unencumbered space

for each additional occupant.

Comment: None.

Protocols: Written policy and procedure, facility plans/specifications

Process Indicators: Measurement. Observation. Inmate interviews. Total square footage, number

of encumbered square feet; number of unencumbered square fee per inmate and number of

inmates housed in unit

COMMENTS:

“Anything about presence and/or size of windows (including cell door window)? Sun light in cells?

Ability to turn off/dim electric lights? Other aspects of conditions of confinement?”

- Ryan Quirk

- Psychologist


“Double bunking should not be allowed in segregation or restrictive housing.”

- Don Redmann

- North Dakota Department of Corrections and Rehabilitation

28





“This standard addresses square footage of cells/rooms in restrictive housing, why would inmate

interviews be a component of process indicators. Blueprints, schematics, measurements, would be

sufficient to demonstrate compliance.”

- Kathy Sligar



“Will this standard be rated as "New Construction only?" This refers to RH as a location that does not

match the proposed definition.”



“4-4141 affirms the requirement that cells/rooms in restrictive housing must provide a minimum of 80

square feet, in compliance with ABA Standard 23-3.8(e). However, 4-ALDF-2A-51 of the proposed jail

accreditation standards requires only that a restrictive housing cell be a minimum of 70 square feet,

which violates 23-3.8(e). Commentary to Subdivision (e) of the ABA Standards also stipulates that no

more than one person should be housed within a segregation cell, which both 4-4141 and 4-ALDF-2A-51

reject in providing for 25 square feet of unencumbered space for each additional occupant in a restrictive

housing cell.”

- Bruce Nicholson

“The proposal to the existing standard would prohibit double bunking of existing cells. This could apply

to new construction and grandfather in the old.”


“In many cases the DOC will not meet the proposal of all cells/rooms in restrictive housing providing a

minimum of 80 square feet, and shall provide 35 square feet of unencumbered space for the first occupant

and 25 square feet of unencumbered space for each additional occupant.”


“Could decrease double banking cell placement opportunities”


29



“Agree to the extent our physical plant allows.”

- Dave Dormire


“Changes to the following standards: 4-4141; 4-4155; 4-4249; 4-4253; 4-4262; 4-4263; 4-4264; 4-4265;

4-4266; 4-4267; 4-4268; 4-4269; 4-4270; 4-4273; 4-4288 inadvertently created no standards for

protective custody & in some cases administrative segregation (or admin housing) which were

subcategories of segregation. Either existing standards must remain or new standards new to be created

for these categories that do not fit definition of restricted housing which replaced segregation.”



“We already have a systemic waiver in place for this standard since most of our facilities do not meet the

requirement. As a physical plant standard the standard should state that it only applies to facilities that

have had their building plans approved after the standard revision date.”


30



Edition: Fourth

Standard: 4-4155


Facility Size: N/A

Accredited: N/A


Existing Standard: Segregation units have either outdoor uncovered or outdoor covered exercise areas.

The minimum space requirements for outdoor exercise areas for segregation units are as follows:

• Group yard modules: 330-square feet of unencumbered space can accommodate two inmates. For

each additional 150-square feet of unencumbered space, an additional inmate may use the

exercise area simultaneously. (Formula: for each 150-square feet of unencumbered space

exceeding the base requirement of 180-square feet for the first inmate, equals the maximum

number of inmates who may use the recreation area space simultaneously). No more than five

inmates are to use a group module at one time.

• Individual yard modules: 180-square feet of unencumbered space. In cases where cover is not

provided to mitigate the inclement weather, appropriate weather-related equipment and attire

should be available to the inmates who desire to take advantage of their authorized exercise time.

Comment: None.

Protocols: None.


Proposal: Restrictive housing units have either outdoor uncovered or outdoor covered exercise areas. The

minimum space requirements for outdoor exercise areas for restrictive housing units are as follows:

o Group yard modules: 330-square feet of unencumbered space can accommodate two

inmates. For each additional 150-square feet of unencumbered space, an additional

inmate may use the exercise area simultaneously. (Formula: for each 150-square feet of

unencumbered space exceeding the base requirement of 180-square feet for the first

inmate, equals the maximum number of inmates who may use the recreation area space

simultaneously). No more than five inmates are to use a group module at one time.

o Individual yard modules: 180-square feet of unencumbered space. In cases where cover

is not provided to mitigate the inclement weather, appropriate weather-related equipment

and attire should be available to the inmates who desire to take advantage of their

authorized exercise time.

Protocols: None.

Process Indicators: Observation. Measurement. Facility logs and activity records. Total square

footage of areas mentioned, population of unit, square feet per inmate. Observations and

photographs

31

Restrictive Housing Committee – 005 (continued)

COMMENTS:

I think this standard should require outdoor exercise areas and access. I believe that the standards should

come in line with federal court decisions that have found that the absence of outdoor recreation is

unconstitutional (Troy Anderson v. State of Colorado, Department of Corrections - Judge R. Brooke

Jackson, 2012).

- Susan J. Jones



It should be set forth in the ACA standards that an inmate should not be forced to choose to spend his out-

of-cell time EITHER to receive a shower and/or to go out for yard. The two opportunities should be

mutually exclusive and presented to the inmate as such. Likewise, he/she may not "trade" shower time for

additional yard time. They are separate entities.

- Madeline K. McPherson

- Pennsylvania Department of Corrections

We recommend that proposal # 5 include language that specifically allows and provides opportunities for

incarcerated persons to converse with each other during their recreation periods.

- Martin Horn




“The conditions of restrictive housing may subject prisoners to extreme sensory deprivation. To counter

this, we recommend that the restrictive housing units have visual access to the outside world and natural

light. In addition, prisoners must have the ability to engage in large muscle exercise, which is essential to

physical health, in areas where there is access to fresh air. See ABA Standard 23-3.6, Commentary to

Subdivision (b).

We recommend that the standard be revised to require simple but varied exercise equipment, such as

chin-up bars, basketballs, squash balls, and/or a par course, so that recreational areas are not barren.

See MR 23(1). We also recommend that recreational areas have a mix of open and rain/sun shielded

areas and provide opportunities for prisoners to converse with one another.”

- Jamelia Morgan


“We only permit one inmate in the recreation space”


32



“While we don’t oppose this proposed standard, we don’t know the amount of resources needed, if any, to

comply with the standard. If substantial resources are required, it may impede our ability to comply with

this standard.”

- Dave Dormire


33



Edition: Fourth

Standard: 4-4249


Facility Size: N/A

Accredited: N/A


Existing Standard: When segregation housing units exist, written policy and procedure govern their

operation for the supervision of inmates under administrative segregation, protective custody, and

disciplinary detention.

Comment: None.

Protocols: None.


Proposal:

4-4249: When restrictive housing units exist, written policy and procedure govern their operation

for the supervision of inmates under restrictive housing.

Comment: None.

Protocols: Written policy and procedure, Post Orders, unit log book(s)

Process Indicators: Physical/electronic case notes, inmate files, logs for Multi-disciplinary

treatment team, Mental Health & Medical visits. Inmate records and restrictive housing log

COMMENTS:

“Administrative status needs to be added in the language - includes PC, Disciplinary Detention, but does

not include Administrative Status as currently written.”

- Andrew Albright





“Agree.”

- Dave Dormire


34



Edition: Fourth

Standard: New Standard 4-4249-1


Facility Size: N/A

Accredited: N/A


Proposal:

4-4249-1: Where inmates are placed in disciplinary detention, written policy and procedure

govern the operation for the supervision of inmates under disciplinary detention

Comment: None.

Protocols: Written policy and procedure, Post Orders, unit log book(s)

Process Indicators: Physical/electronic case notes, inmate files, logs for Multi-disciplinary

treatment team, Mental Health & Medical visits. Inmate records and restrictive housing log

COMMENTS:



“Is a separate standard for disciplinary detention necessary based on the new definition of restrictive

housing?”

- Jodi Witte


- Nebraska Department of Correctional Services

“Standard refers to disciplinary status, which is not defined in the Glossary. Suggest that this standard is

not necessary for restrictive housing as it is covered by the proposed changes to 4-4249.”

- James M LeBlanc

- Secretary


“Agree.”

- Dave Dormire


35



“This standard is redundant and unnecessary. It would result in duplication of documentation submitted

for standard 4-4249. Recommend objecting to this standard based on the aforementioned.”


36



Edition: Fourth

Standard: 4-4250


Facility Size: N/A

Accredited: N/A


Existing Standard: The warden/superintendent or shift supervisor can order immediate segregation

when it is necessary to protect the inmate or others. The action is reviewed within 72 hours by the

appropriate authority.

Comment: None.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that the warden/superintendent, authorized

designee or shift supervisor can order immediate removal from general population when it is necessary to

protect the inmate or others. The action will be approved, denied, or modified within 24 hours by an

appropriate and higher authority who is not involved in the initial placement.

Comment: Inmates who pose a threat to staff, other inmates, or themselves may be removed

from general population for the safety and security of the institution. Those reviewing an

inmates’ removal from general population are not to be involved in the initial removal of the

inmate to maintain impartiality.

Protocols: Written policy and procedure

Process Indicators: Specific paperwork documenting review and approval/disapproval of

placement or removal, incident reports. Order of Detention signed by Warden/Superintendent or

Shift Supervisor. Documentation showing review within 24 hours by appointed authority not

involved

COMMENTS:

“Was a caveat considered regarding the "24 hours" stipulation- something like "24 business hours".

Otherwise, is it the case that if an inmate is immediately removed from general population on a Friday

night, the reviewer will make their decision on a Saturday? If so, can the review take place over the

phone, via email, etc.? Or in person?”

- Ryan Quirk

- Psychologist


37



“The revision wants placement reviewed within a 24 hour period. Due to senior supervisor staffing issues

(Weekends/Holidays) can we change this to “within 24 hours (excluding weekends and holidays) by an

appropriate…..? Thanks”

- Robert Kean

- Roxbury Correctional Institution

“Proposal 8 permits the warden or designee to remove a person from general population when necessary

to protect the inmate or others. We suggest that the rule, in addition to requiring review within 72 hours

by an appropriate and higher authority also require development of a plan to return the incarcerated

person to general population at the earliest possible time.”

- Martin Horn


“Forcing a formal review of admission to RHU from 72 hours currently to 24 hours is unnecessary and

excessive. In practice, correctional authorities are constantly engaged and aware of persons in RHU and

this standard appears to suggest that one vested with the decision-making ability to cause admission

cannot be trusted beyond a 24-hour review period.”

- Jennifer French


“In this standard, the change would be that "the action will be approved, denied, or modified within 24

hrs. by an appropriate and higher authority who is not involved in the initial placement." We are a small

facility, the "higher authority" may not be in the next 24 hrs. if a Sgt does the segregation. If this occurs

on a Friday night, I as the Lt am not back in until Monday. If the review can be done by another

supervisor, it would not be a higher authority, it would be equal rank but uninvolved.”

- Kathy Rose

- Geauga County Sheriff's Office

“Recommend removing the language "an appropriate and" from proposal. This would ensure absolute

clarity that the expectation is "The action will be approved, denied, or modified within 24 hours by a

higher authority who is not involved in the initial placement."”

- Andrew Albright



“Do not agree. Current practice is 72 hours, time frame is appropriate.”


38



“Recommend rewording this Proposal statement: "The action will be approved, denied, or modified with

72 hours by an appropriate authority who is not involved in the initial placement. Considering weekends

and holidays, 24 hours is NOT an appropriate or reasonable time frame. Process Indicators: To be

consistent in the Proposed Standard, "appointed authority" should read as appropriate authority.”

- Kathy Sligar



“This standard applies to the immediate removal of an offender from general population to restricted

housing. The removal can be authorized by the warden, designee or shift supervisor with confirmation by

a higher authority not involved in incident within 24 hours. Is this proposal practical? If the warden

authorizes placement, do we suggest that his/her judgment has to be reviewed and approved by a higher

authority within 24 hours? I do not believe it is necessary to change from the current language of 4-4250,

(“review within 72 hours by the appropriate authority”)?”

- Richard L Stalder

- Delegate Assembly Member

“We feel it should be left at 72 hours, in the case the incident happens on a Friday, the Warden or

Superintendent will approve on next working day. If the warden or superintendent did not approve the

original placement.”

- Kent Peck

“Based on definition of restrictive housing, an offender may not be considered in a restrictive housing

status until after the first 22 hours period. As such, maintaining the 72 hour review as in the original 4-

4250 would be more appropriate and manageable.”

- James M LeBlanc

- Secretary


“The process indicators need to reflect the language of the new standard. The new standard states

Warden/superintendent, authorized designee or shift supervisor. The process indicators state just

Warden/superintendent and shift supervisor. We are in favor of the language of the new standard but

need to change the process indicators to reflect new standard language.”

- John Dunn

39



“Reducing the review period for placements into restrictive housing by an appropriate authority from 72

hours to 24 hours is a much needed strengthening of this standard. We also recommend that the

reviewing authority be designated as a warden or higher. Following the completion of review of

placement decisions, we further recommend that the standard require that staff work to develop a plan

that provides for the prisoner’s transition back to the general population as soon as possible.”

- Jamelia Morgan


“Proposal does not give consideration for weekends or holidays. The timeline may be problematic when

you potentially have Wardens making the decision for placement.”



“The proposed revision to 4-4250 provides that the decision to assign an inmate to restrictive housing

will be reviewed within 24 rather than 72 hours by a superior authority who was not involved with the

original decision. Similarly, the proposed revision to 4-4262 will require review by a superior authority

of the decision to deny an inmate a shower, and 4-4264 requires the same review process for the decision

to assign an inmate to a substituted food plan.

In all three instances, the revision commendably buttresses the inmate’s due process rights. Moreover, 4-

4262 is now consistent with ABA Standard 23-3.7(c)(ii), which protects an inmate’s “opportunities to

take regular showers,” and 4-4264 is now consistent with ABA Standard 23-3.4(c), which requires that

nutritional alternatives be provided to inmates on substituted food plans.”

- Bruce Nicholson

“The action of ordering immediate removal of an inmate from general population for the safety and

security of the institution will be approved, denied, or modified within 24 hours by an appropriate and

higher authority who is not involved in the initial placement may be hard to achieve if after the shift

commander places them in restrictive housing on a Friday night.”


“Add to the proposal “and placement in restrictive housing” to “Written policy, procedure, and practice

provide that the warden/superintendent, authorized designee or shift supervisor can order immediate

removal from general population and placement in restrictive housing… “.

The existing standard to review the action within 72 hours versus the proposal of 24 hours by the

appropriate authority is more reasonable especially over weekends and holidays.”


40



“Review should be within 24 hours or next business day by appointed authority”


“We concur with this proposed standard except for weekends and holidays. In those cases, we propose

the standard say by the end of the next business day.”

- Dave Dormire


“Need to add the issue re weekends and holidays to the, “will be approved, denied, or modified within 24

hours.”

- Art Beeler

“Recommend no change to standard or modify change to read within one business day instead of 24

hours.”


41



Edition: Fourth

Standard: 4-4251


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that an inmate is admitted to the

segregation unit for protective custody only when there is documentation that protective custody is

warranted and no reasonable alternatives are available.

Comment: Protective custody should be used only for short periods of time, except when an

inmate needs long-term protection and the facts are well documented. Admission to protective

custody should be fully documented with a consent form signed by the inmate.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in protective custody placed in

restrictive housing are allowed access to congregate activities, and access to programming commensurate

with general population of the same security level(s). Inmates assigned to protective custody should only

be placed in restrictive housing when no reasonable alternatives are available. An inmate is admitted to

protective custody status when there is documentation that protective custody is warranted and no

reasonable alternatives are available.

Comment: Protective custody should be used only for short periods of time, except when an

inmate needs long-term protection and the facts are well documented. Admission to protective

custody should be fully documented with a consent form signed by the inmate.


Process Indicators: Daily building/program schedule, offender attendance rosters,

documentation of placement of PC inmates in restrictive housing. Request for Protective Custody

and Documentation of reason for admitting or denying status. (Revision Daily activities log and

inmate unit record)

COMMENTS:

“Placed in RH for PC reasons is my assumption. The wording of this standard may cause confusion when

placing a PC inmate in RH for disciplinary reasons (DD). Some clarification that this standard speaks to

-using RH for PC reasons may be helpful.”

- John Jude Coleman

- Central Office

- Ohio DRC

42



“Partial Agreement. Agree with the concept, however resources, physical plant and other requirements

cannot be met. Agree that offenders assigned to PC should only be placed in restrictive housing when no

alternatives are available.”


“This standard is similar to 4273 although standard 4273 applies to offenders in detention for more than

60 days. It is recommended to apply the same time period to 4251. During that time period, the offender

may be able to work out the issue requiring protective custody.”

- Julie Stout

- Superintendent


“The Nebraska Department of Corrections would like suggest this standard be separated into two

standards. "Inmates assigned to protective custody should only be placed in restrictive housing when no

reasonable alternatives are available. An inmate is admitted to protective custody status when there is

documentation that protective custody is warranted and no reasonable alternatives are available". This

section of the proposed standard could be its own standard.”

- Jodi Witte



“Standard 4-4251 - requires access to congregate activities for PC inmates. Such access would not be

possible for NJDOC's non-congregate PC inmate because of safety/security concerns.”

- Gary Michael Lanigan

- NJ Department of Corrections

“Requires timely (immediate) notification of changed placement to the inmate . Consent form signed by

the inmate within (what time frame?) Interpreter supplied if needed.”

- Diane Murray Ward


43



“I have significant concerns around the impact of this standard on the safety and security of our prisons

and staffing resources. As it is stated, it is only intended to apply to protective custody offenders in

restrictive housing. However, these are the very offenders placed in cell housing for protection, so

requiring congregate activities and programming at the same level of general population would only

increase the safety risks to this population.”

- James M LeBlanc

- Secretary


“Currently, the proposed standard requires that prisoners in protective custody receive “access to

congregate activities and access to programming commensurate with general population of the same

security level(s).” We strongly support this provision but recommend that protective custody prisoners

also be permitted access to property, television, reading materials, phone calls, and visits, at a level that

is “commensurate with general population of the same security level.”

See ABA Standard 23-5.5(g) (“If correctional authorities assign a prisoner to protective custody, such a

prisoner should be: (i) housed in the least restrictive environment practicable, in segregated housing only

if necessary, and in no case in a setting that is used for disciplinary housing; (ii) allowed all of the items

usually authorized for general population prisoners; (iii) provided opportunities to participate in

programming and work . . . ; and (iv) provided the greatest practicable opportunities for out-of-cell

time”).”

- Jamelia Morgan


“The revised version of 4-4251 requires access to congregate activities and to programming

commensurate with the general population of the same security level for inmates assigned to protective

custody. Moreover, it provides that inmates assigned to protective custody should be placed in restrictive

housing only when no reasonable alternatives are available.

This affords parity between the level of services accessible to inmates in protective custody and the level

of services accessible to those in the equivalent general population, consistent with ABA Standard 23-

3.8(d). However, ABA Standard 23-5.5(g)(i) stresses that prisoners assigned to protective custody should

“in no case” be housed in a setting that is used for disciplinary housing, whereas 4-4251 is silent on

differentiating between these two types of restrictive housing.

Therefore, the revision to 4-4251 should be amended to take into consideration the different requirements

necessitated by protective custody as distinct from administrative segregation or disciplinary detention.”

- Bruce Nicholson

44



“If a protective custody inmate is the only protective custody inmate in restricted housing who can they

congregate with?”


“Allowing inmates in protective custody and placed in restrictive housing access to congregate activities

and programming commensurate with the general population of the same security level would be difficult

to implement.”


“The proposal that inmates in protective custody placed in restrictive housing are allowed access to

congregate activities with general population of same security level (s) may not be safe.”


“Consent form may create liability issues if inmate refuses to sign”


“Agree.”

- Dave Dormire


“Recommend no change to standard. We already comply with this standard.”


45



Edition: Fourth

Standard: 4-4252


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that an inmate is placed in

disciplinary detention for a rule violation only after a hearing by the disciplinary committee or hearing

examiner.

Comment: None.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that an inmate is placed in restrictive housing

for a rule violation only after a hearing by the disciplinary committee or hearing examiner. Any time

served in administrative status is to be credited to a determinant restrictive housing sanction.

Comment: None.

Protocols: written policy and procedure

Process Indicators: Inmate files, conduct reports on rule violations, dispositional records of

disciplinary committee or hearing examiner. Disciplinary action, Disciplinary records.

COMMENTS:

“4-4252 Access to all programs for inmates on PC would create a tremendous drain on resources and

adversely affect GP inmates. Consider inmates in PC over 12 months. 4-4256 Mental health review for

everyone after 7 days is excessive. Current standards for screening MH inmates on admission should

suffice. In general as Dr. Autheride said at the panel discussion, there is no research to support that

restrictive housing causes decompensation. We need to keep that in mind as we go forward.”

- Mark Murphy

- Virginia Department of Juvenile Justice

“Proposal 10 requires written policy and procedure to govern the placement of inmates into restrictive

housing and disciplinary detention. We recommend that appropriate and meaningful due process

including a written notice of the reasons for the confinement and an opportunity to appeal the

determination be afforded incarcerated persons prior to placement in and throughout their confinement

in restrictive housing.”

- Martin Horn


46





“Proposal - To be consistent with proposed definitions, proposal should read as follows: Written policy,

procedure, and practice provide that an inmate is placed in disciplinary detention for a rule violation

only after a hearing by the disciplinary committee or hearing examiner. Any time served in administrative

status is to be credited to a determinant restrictive housing sanction.”

- Kathy Sligar



“Clarification is needed on the definitions of "disciplinary status" and "determinant restrictive housing

sanction." The implementation of this standard would require discussion on the use of restrictive housing

as defined (22 hours a day) as a sanction verses the use of existing sanctions (disciplinary

detention/extended lockdown/etc.).”

- James M LeBlanc

- Secretary


“The overuse of restrictive housing/solitary confinement is well-established. One recent study by the Vera

Institute of Justice, found that prisoners are frequently placed into restrictive housing for non-violent,

relatively minor reasons, such as “talking back, being out of place, failure to obey an order, failing to

report to work or school, or refusing to change housing units or cells[.]”

SHAMES, ET AL.,VERA INSTITUTE OF JUSTICE, SOLITARY CONFINEMENT: COMMON

MISCONCEPTIONS AND EMERGING SAFE ALTERNATIVES 14 (May 2015), available at

http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement-misconceptions-safe-

alternatives-report_1.pdf. Vera reports that prisoners placed in restrictive housing for such disruptive

behaviors constitute the majority of people in disciplinary segregation in some jurisdictions. Id.

For example, in Illinois “more than 85 percent of the people released from disciplinary segregation

during a one-year period had been sent there for relatively minor infractions, such as not standing for a

count and using abusive language.” Id. (citing Email from Bryan Gleckler, Chief of Staff, Illinois

Department of Corrections, to Vera Institute of Justice (April 3, 2015)).

We therefore propose that the ACA Standards place limits on the types of misconduct for which restrictive

housing can be used. The use of restrictive housing for disciplinary purposes should be limited to

circumstances where a prisoner poses an ongoing and serious threat to safety and security. Minor

misconduct should never be punished by restrictive housing/solitary confinement. We also recommend

that the standards include presumptive limits to placement in disciplinary segregation

starting with the 15-day limit set forth in the Mandela Rules. MR 43(1)(b) (prohibiting the use of

prolonged solitary confinement defined as “in excess of 15 consecutive days” by MR 44). (cont.)

47



For all placement decisions in restrictive housing, and prior to placement, we recommend that the facility

provide the prisoner with written notice setting forth the reasons for confinement, in addition to the

hearing by a disciplinary committee or hearing examiner required by the existing standard, and an the

opportunity to appeal the final placement decision.

We strongly support the revised standard’s additional requirement that any time served on administrative

status awaiting a disciplinary hearing be credited to the final disciplinary sanction.”

- Jamelia Morgan


“What happens when process to completion exceeds time of issued sanction”


“We do not support this proposed standard. In Missouri, while procedure allows this to occur,

disciplinary segregation is a more restrictive status than administrative segregation and thus should be,

at times, considered different.”

- Dave Dormire


“Wording should be changed to require credit for AC time to be considered, not required.”


48



Edition: Fourth

Standard: 4-4253


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide for a review of the status of inmates

in administrative segregation and protective custody by the classification committee or other authorized

staff group every seven days for the first two months and at least every 30 days thereafter.

Comment: A hearing should be held to review the status of any inmate who spends more than

seven continuous days in administrative segregation and protective custody to determine whether

the reasons for the placement still exist.

Protocols: None.


Proposal: Written policy, procedure, and practice provide for a review of the status of inmates in

restrictive housing by the classification committee or other authorized staff every seven days for the first

60 days and at least every 30 days thereafter.

Comment: None.


Process Indicators: Inmate files, review records, dispositional records of disciplinary committee

or hearing examiner. Documentation of review and outcomes

COMMENTS:

“Was there consideration of following: when a certain length of time was reached (60 days for example)

an extension of placement in RH would require an upper level administrator's review/approval, such as a

warden/superintendent or even at the HQ level?”

- Ryan Quirk

- Psychologist


“Recommend adding the following: .....review of the status of inmates in restrictive housing by the

classification committee or other authorized staff "AS DEFINED BY AGENCY POLICY" every seven

days for the first two months and at least every 30 days thereafter. Agency policy needs to define the

composition/staff that makes up the classification committee or other authorized staff to provide

clarification especially to auditors on who is responsible to review the status.”

- Andrew Albright



49



“Do not agree. Current Practice, Ad Seg reviews is a review at 2 days, 14 days and a final review at 30

days. Max time for placement on Ad Seg is 47 days with optional time extensions on a case by case basis.

Time extensions must be approved by designated HQ person who has statewide restricted housing

oversight.”


“It is recommended that the reviews continue for administrative seg and protective custody and not all

offenders in restrictive housing.”

- Julie Stout

- Superintendent


“Standard 4-4253 - requires status review of inmate housed in restrictive housing every seven (7) days

for the first sixty (60) days. This seems unworkable for all restrictive housing. There are some situations

where this frequency of review is appropriate. However, as to Adseg and MCU it seems unnecessary and

impractical.”



“This standard should provide a more extended time period for reviews for those offenders held on death

row. Assuming the intention is to review for eventual release, death row offenders would not be released

from such housing based on a classification committee review.”

- James M LeBlanc

- Secretary


“Based on the change in definition this workload would be very difficult to achieve without additional

staffing resources. What is the objective of the review?”



“While we support this proposed standard conceptually, the amount of staffing resources needed may

interfere with our ability to comply.”

- Dave Dormire


50



“Is the review called for in this standard an in person review or a paper review. I assume it is a paper

review; however, if this is the case I think the standard should be written in such a way to 1) make an in-

person review optional and two make sure that psychological reports are part of the review process”

- Art Beeler

51



Edition: Fourth

Standard: 4-4254


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice specify the review process used to release an

inmate from administrative segregation and protective custody.

Comment: An inmate should be released by action of the appropriate authority.

Protocols: None.


Proposal: Written policy, procedure, and practice specify the review process used to release an inmate

from restrictive housing.

Comment: An inmate should be released by action of the appropriate authority.


Process Indicators: Release documentation indication step-down option if applicable. Inmate

unit record showing housed more than 14 days

COMMENTS:

“Proposal 12 which requires that written policy and procedure specify the review process to be used to

release an inmate from restrictive housing and protective custody would be improved by also requiring

that it include written notice to the inmate of the determination and reasons for it and an opportunity for

the inmate to be heard and an appeal mechanism.”

- Martin Horn


“Agree. Current Practice. We do not understand the Process Indicators.”


52



“Process Indicators - Recommend removal of "inmate unit records for offenders housed more than 14

days." This specific time frame has no bearing on inmate release and is not applicable to the proposed

standard.”

- Kathy Sligar



“This standard should exclude death row offenders. In addition, the Process Indicator suggests it applies

to those held longer than 14 days, which should be clarified in the standard.”

- James M LeBlanc

- Secretary


“We recommend that the Standard be revised to include the requirement that written reasons for

continued placement in restrictive housing be provided to the prisoner, as well as an opportunity for the

prisoner to challenge the placement decision in a formal appeal process.”

- Jamelia Morgan


“In the process indicator it is unclear what "Inmate unit record showing more than 14days" means. Is it

the expectation of this standard to apply this to Disciplinary detention, medical housing, PCO, Negative

airflow room...? What is the objective of the review process?”



“Agree.”

- Dave Dormire


53



Edition: Fourth

Standard: 4-4256


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that a qualified mental health

professional personally interviews and prepares a written report on any inmate remaining in segregation

for more than 30 days. If confinement continues beyond 30 days, a mental health assessment by a

qualified mental health professional is made at least every three months--more frequently if prescribed by

the chief medical authority.

Comment: Inmates whose movements are restricted in segregation units may develop symptoms

of acute anxiety or other mental problems; regular psychological assessment is necessary to

ensure the mental health of any inmate confined in such a unit beyond 30 days.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that a qualified mental health professional

personally interviews and prepares a written report on any inmate remaining in restrictive housing within

7 days of placement. If confinement continues beyond 30 days, a behavioral health assessment by a

qualified mental health professional is made at least every 30 days--more frequently if prescribed by the

chief mental health authority. The evaluation will be conducted out of cell in a confidential area except in

exigent circumstances.

The 7th day mental health assessment form Screen should include at a minimum, but is not limited to:

Inquiry into:

whether the offender has a present suicide ideation

whether the offender has a history of suicidal behavior

whether the offender is presently prescribed psychotropic medication

whether the offender has a current mental health complaint

whether the offender is being treated for mental health problems

whether the offender has a history of inpatient and outpatient psychiatric

treatment

whether the offender has a history of treatment for substance abuse

Observation of:

general appearance and behavior

evidence of abuse and/or trauma

current symptoms of psychosis, depression, anxiety, and/or aggression

54


Disposition of offender:

to the general population

to the general population with appropriate referral to mental health care service

referral to appropriate mental health care service for emergency treatment

Comment: Inmates whose movements are restricted in restrictive housing units may develop

symptoms of acute anxiety or other mental problems; regular psychological assessment is

necessary to ensure the behavioral health of any inmate confined in such a unit beyond 30 days.

Protocols: Policy and procedures; standardized (behavioral health) reporting form

Process Indicators: Established and complete standardized behavioral health form (restrictive

housing mental health (RHMH) evaluation form - complete and current for the required period).

Inmate health records, unit logs, behavioral health review documentation within 7 days, and

behavioral health review documentation after 30 days. Observation and interviews

COMMENTS:

“The standard includes what the mental health assessment form screen should include, but the standard

does not include these details for the 30 day assessment. I think this type of information should be

included in this standard.”

- Susan J. Jones



“Process Indicators - is the "standardized behavioral health form (RHMH) an existing form? To review

the standard, one would need to know what is on that particular evaluation form”

- Jeanne L. Phillips

- MBA, LHRM, CCHP

- Pinellas County Jail.

“7 days may be too long. Any discussion regarding the Screen acting as an intake form so that MH staff

know who has arrived on the unit and so inmates can be informed/reminded of how to access MH

services? Placement in RH can be stressful and a sensitive transition period- advisable to screen for

suicidal ideation/intent within 24-48 business hours. -What is done with the results of "behavioral health

assessments"? Are then certain inmates recommended for alternative placements?”

- Ryan Quirk

- Psychologist


55



“Access to all programs for inmates on PC would create a tremendous drain on resources and adversely

affect GP inmates. Consider inmates in PC over 12 months. 4-4256 Mental health review for everyone

after 7 days is excessive. Current standards for screening MH inmates on admission should suffice. In

general as Dr. Autheride said at the panel discussion, there is no research to support that restrictive

housing causes decompensation. We need to keep that in mind as we go forward.”

- Mark Murphy

- Virginia Department of Juvenile Justice

“The content for the behavioral health assessment is more appropriate for a mental health screening

assessment by a qualified mental health professional, which generally should be done prior to transfer to

a restricted housing unit but certainly within 24 hours.

This mental health screening assessment can also be done by trained nursing staff at the R.N. level.

Qualified mental health professionals are not defined in the definition section. We suggest using the

NCCHC definition as follows:

Qualified mental health professionals include psychiatrists, psychologists, psychiatric social workers,

psychiatric nurses, and others who by virtue of their education, credentials, and experience are permitted

by law to evaluate and care for the mental health needs of patients.

The APA also recommends rounds by mental health staff for all inmates in restrictive housing that should

be on at least a weekly basis. The frequency of mental health rounds will depend on the size of the unit

and the usual duration of stay.”




“The word "placement" needs to be the word ending the first sentence of the standard, not place.”

- Andrew Albright



“Partial Agreement. Current Practice, interview occurs within 1 business day. The form that is utilized

captures all “inquiry into” and “observation of” information. We believe 7 days is too long. We do not

agree with 30 day reports, however Restrictive Housing Unit rounds are conducted by Mental Health

staff at a minimum of weekly. Offenders may request contact with Mental Health staff at any time and are

seen within 2 business days. ”


56



“This standard was initially intent for offenders placed in long term segregation (30+ days), and

Colorado believes that it should continue to apply to offenders placed into and held within "Extended

Restrictive Housing" environments of 30+ days.”

- Kathy Sligar



“Initially, the assessment requirement is stated as “within 7 days”. Subsequently, the requirement is

referred to as the “7th day mental health assessment”. Is the intent to require the assessment

immediately upon assignment but in no case later than 7 days, or to require it after a 7 day period has

passed?”

- Richard L Stalder


“Include steady housing area staff observations during the week since medications can either alleviate or

exacerbate behavioral changes which uniform staff can report.”

- Diane Murray Ward


“Oklahoma offenders are seen within 24 hours evaluated for the information requested in the proposed 7

day review. All concerns are shared with the appropriate Mental Health Authority and facility head.”

- Kent Peck

“This standard would result in wasteful use of limited resources in instances where there are no mental

health indicators. Suggest consideration be given to drive such reports/reviews based on offender

behavior change. Also, note that the disposition of the offender to return to general population should not

be driven by the mental health assessment alone.”

- James M LeBlanc

- Secretary


57



“This Standard would entail many corrections systems to hire additional mental health staff which is not

possible at this time. We recommend a revision to this standard to state that inmates with known Mental

health issues or considered a high risk for Mental health issues have a written evaluation within 7 days

and all other inmates to have an initial mental health review within 7 days and a written evaluation

within 15 days.”

- John Dunn

“I suggest to follow ACA standard for intake assessment (physical health ). Inmates with a diagnosis of

serious mental illness should be assessed within 14 days and others within 30 days. If we follow a cookie

cutter approach then chances will be high to miss inmates with serious mental health issues. Every 30

days for inmates with SMI and 90 days for inmates without SMI.”

- Raman Singh

“We support the enhanced mental health assessment provisions in the proposed standard. Such

enhancements reflect evolving mental health practice recognized by the field and court decisions.

However, a significant missing piece in the proposed language is a requirement that following the

behavioral health assessment, treatment or removal from restrictive housing be mandated if the qualified

mental health professional determines such actions are necessary.

See ABA Standard 23-2.8 (“If the assessment indicates the presence of a serious mental illness, or a

history of serious mental illness and decompensation in segregated settings, the prisoner should be

placed in an environment where appropriate treatment can occur. Any prisoner in segregated housing

who develops serious mental illness should be placed in an environment where appropriate treatment can

occur.”).

Any treatment should be provided in private and should include both pharmacological therapies and

psychotherapy if appropriate. We also recommend adding the following to the “Inquiry into” section: - If

a prisoner refuses to shower, or has hygiene or behavioral issues that have been reported by staff

In addition, for prisoners placed into restrictive housing, we recommend that in addition to requiring a

daily visit by a qualified health care professional, prisoners placed in restrictive housing also receive a

comprehensive examination by a health care provider within 72 hours of such placement to determine

whether placement into isolation is contraindicated.”

- Jamelia Morgan


58



“Under 4-4256, a review administered every seven days for the first sixty days, and then every thirty days

thereafter, will inquire into an inmate’s susceptibility to harm from restrictive housing. This revision

brings 4-4256 into procedural compliance with ABA Standard 23-2.8(c), which details the regularity of

medical review of an inmate’s status in restrictive housing.

It also comports with 23-2.9(b), which requires that health care professionals devise an individualized

plan toward the inmate’s release from segregation. However, the proposed revision is silent with regard

to the underlying substantive imperative, which holds that placing individuals with serious mental illness

in restrictive housing constitutes cruel and unusual punishment under the Eighth Amendment to the

Constitution.

Indeed “New Standard #2” expressly provides for the option of assigning an inmate with diagnosed

serious mental illness to restrictive housing under the condition that they “present a clear and present

danger to staff and other inmates, that is not associated with the diagnosed mental illness.”

The revision to 4-4256 and “New Standard #2” should therefore require, in addition to regular

assessments of the inmates’ mental and behavioral health, that a finding of serious mental illness should

foreclose assignment to a restrictive housing unit altogether.”

- Bruce Nicholson

“The proposal that a qualified mental health professional personally interviews and prepares a written

report on any inmate remaining in restrictive housing within 7 days of placement seems excessive to

complete on the 7th day.

Do we need to know within seven days whether the offender has a history of treatment for abuse?

Disposition of offender to the general population is not for Mental Health to determine alone, should be

in conjunction with a referral.”


59



“It is suggested at this level of review and screening as a best practice to:

Pre-Seg screen:

inmates receive a mental health screen by a qualified mental health professional prior to seg placement

to determine if the inmate has an SMI, and/or acute medical/mental health contraindication (e.g., acute

psychosis, actively suicidal, recent serious suicide attempt, or in need of placement on mental health

watch).

Post Seg Placement:

Seg inmates that are open mental health cases are evaluated by a qualified mental health professional

within the next business day within 24 hours (the next business day) to determine if the inmate has an

SMI, and/or acute medical/mental health contraindication (e.g., acute psychosis, actively suicidal, recent

serious suicide attempt, or in need of placement on mental health watch). If the inmate already has an

SMI designation, "a clinical evaluation to determine SMI need not be performed."

Seg inmates with open mental health cases are evaluated every 30 days during seg placement by

qualified mental health professional to determine if the inmate has an SMI, and/or acute medical/mental

health contraindication (e.g., acute psychosis, actively suicidal, recent serious suicide attempt, or in need

of placement on mental health watch). If the inmate already has an SMI designation, "a clinical

evaluation to determine SMI need not be performed."

Seg inmates who do not have open mental health cases receive an assessment by a qualified mental

health professional within 30 days following initial placement in seg, and not less than every 90 days

thereafter to determine if the inmate has an SMI, and/or acute medical/mental health contraindication

(e.g., acute psychosis, actively suicidal, recent serious suicide attempt, or in need of placement on mental

health watch). If the inmate already has an SMI designation, "a clinical evaluation to determine SMI need

not be performed."”


“This proposal will cause a significant workload issue on mental health staff as it requires a somewhat

in-depth interview, review and report of every single person going to segregation within 7 days of

placement. In Missouri, mental health is consulted upon placement but is not required to do an interview

and report until after 30 days.”

- Dave Dormire


60



“Delete Disposition of offender from standard. Mental health assessment should be one piece of a

multidisciplinary team decision to remove from restricted housing.”



“Concur with proposed changes.”


61



Edition: Fourth

Standard: 4-4257


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2011) Written policy, procedure, and practice require that all

special management inmates are personally observed by a correctional officer twice per hour, but no more

than 40 minutes apart, on an irregular schedule. Inmates who are violent or mentally disordered or who

demonstrate unusual or bizarre behavior receive more frequent observation; suicidal inmates are under

continuing or continuous observation.

Comment: None.

Protocols: None.


Proposal: Written policy, procedure, and practice require that all restrictive housing inmates are

personally observed by a correctional officer twice per hour, but no more than 40 minutes apart, on an

irregular schedule. Inmates who are violent or mentally disordered or who demonstrate unusual or bizarre

behavior receive more frequent observation; self-harm and suicidal inmates are under continuous

observation. Identification of the type of observation (minimal to constant) is determined and

documented on a log by a qualified mental health professional during regular hours or medical staff after

hours

Comment: An inmate “companion” program for use in the observation process is acceptable

provided that the inmate “companion” is trained and monitored.

Protocols: Written policy and procedure and post orders

Process Indicators: Staff plans/logs. Review sheets; observation forms. Unit record/log

documenting cell checks

COMMENTS:

“In proposal 14, constant observation of actively suicidal prisoners is appropriate but it should be done

by a staff person and not by an inmate “companion,” no matter how well trained. The responsibility and

liability lies with the jurisdiction and in that case should not be assigned to an inmate but rather to a

trained and responsible staff person.”

- Martin Horn


62



“Suicidal inmates, with rare exceptions, should not be in a restricted housing setting unless they are

waiting for an impending transfer to an appropriate healthcare setting.

The use of inmate “companions” for observation of suicidal inmates is very problematic and not

recommended by the APA.”




“Recommend defining the terminology "special management" or replacing the term with "restrictive

housing". I believe it is understood that special management term is referencing restrictive housing.”

- Andrew Albright



“Agree. Current practice, at a minimum 30 minute tier checks.”


“"Special management inmates" is confusing with new definition of restrictive housing. Proposal - re-

word first sentence - Written policy, procedure, and practice require that all inmates in restrictive

housing are personally observed by a correctional officer twice per hour, but no more than 40 minutes

apart, on an irregular schedule.”

- Kathy Sligar



63



“In this proposal, a “self-harm inmate” requires continuous observation. While such an extreme level of

observation is necessary for actively suicidal inmates, can the inclusion of the “self-harm” category be

operationally justified? Does it refer to tattooing? Self-mutilation? To what degree? For example, the

director of the forensic psychiatry program at the lsu medical school has, in the development of the

mental health program at the la state penitentiary, has differentiated the reporting and clinical response

paths between suicide attempts and suicide gestures. To further generalize by utilizing the term “self-

harm” appears difficult to implement.

In addition, the standard requires observation to be done by “correctional officers”. The comment

allows observation by “inmate companions”. While the comment is not material to compliance with the

standard, it is at best confusing. I believe that properly trained inmate observers can be appropriately

utilized, but such utilization would conflict with the standard as written.”

- Richard L Stalder


“Irregular "tours" are conducted by suicide prevention trained detainees as described within New York

City's DOC Observation Aide Program. Suggested resource.”

- Diane Murray Ward


“Oklahoma does not use the inmate companion program. Special management inmates are observed no

longer than 30 minutes between checks.”

- Kent Peck

“Standard references "special management inmates" verses "restrictive housing inmates." Also, standard

requires extensive officer observation which could be provided by trained offenders in certain

circumstances. Clarification is needed on identifying self-harm and suicidal offenders who might require

this observation. This standard will require significant resources to implement, but doesn't appear to

improve on existing standard requirements.”

- James M LeBlanc

- Secretary


64



“Self-harm and suicidal inmates are under continuous observation. Identification of the type of

observation (minimal to constant) is determined and documented This is a blanket statement. May require

significant resources to provide continuous watch for all “ self harm” inmates without any significant

advantage or clinical rationale. If an inmate requires continuous observation then MH professional

should order such.”

- Raman Singh

“We are not opposed to twice an hour checks.”

- Dave Dormire


“Delete self harm from continuous observation, or work with PRC to modify PREA monitoring standard.

May conflict with PREA monitoring standards that requires same sex observation (including by camera)

for everything except suicide.”



“Recommend not deleting "continuing or" from existing standard language. To say they must be under

continuous observation contradicts the minimal or constant language in the proposed change.”


65



Edition: Fourth

Standard: 4-4258


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation receive

daily visits from the senior correctional supervisor in charge, daily visits from a qualified health care

official (unless medical attention is needed more frequently), and visits from members of the program

staff upon request.

Comment: Because they are restricted from normal movement within the institution, it is

imperative that inmates in segregation are visited regularly by key staff members who can ensure

that their health and well-being are maintained.

Protocols: None.

Process Indicators: None

Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing receive daily

visits from the senior correctional supervisor in charge, daily health care rounds from a qualified health

care professional (unless medical attention is needed more frequently), and visits from members of the

program staff at least weekly.

Comment: Because they are restricted from normal movement within the institution, it is

imperative that inmates in restrictive housing are visited regularly by key staff members who can

ensure that their health and well-being are maintained.


Process Indicators: Log Documenting Daily rounds. Documentation of Senior Correctional

staff visits and health care visits. Inmate interviews and completed unit log documenting visit for

senior staff

COMMENTS:

“I would recommend at least weekly mental health rounds in an outpatient RH setting (daily for

residential treatment setting) by a qualified mental health professional. Inmates have the opportunity to

voice issues/concerns and staff have opportunity to observe inmate and condition of cell.”

- Ryan Quirk

- Psychologist


66



“Proposal 15 provides for daily health care rounds. These rounds should be meaningful encounters.

“Through the door” cell side encounters do not provide sufficient privacy or diagnostic opportunity to

the practitioner and the opportunity for the prisoner to see the health care provider in a private and quiet

setting should be required.”

- Martin Horn


“The APA also recommends rounds by mental health staff for all inmates in restrictive housing that

should are at least on a weekly basis. The frequency of mental health rounds will depend on the size of the

unit and the usual duration of stay.”




“Agree. Current practice, Unit Sgt. and Health Care staff daily.”


“Recommend defining "Program Staff" to ensure for compliance with standard.”

- Kathy Sligar



“Standard 4-4258 and Standard 4-4400 requires that medical staff see all inmates in restrictive housing

daily. I think this is unnecessary and overly burdensome.”



67



“We support the requirement of daily healthcare rounds in this standard. This standard should be

strengthened to ensure that those rounds are effective by requiring that they take place during the

prisoner’s “waking hours.” Further, the rounds should include an inquiry into: (1) the prisoner’s

physical and mental health; (2) urgent requests or time-sensitive issues; and (3) overall well-being.

Where the prisoner presents serious concerns relating to mental health, medical care, and/or security and

safety, the prisoner’s concerns should be documented by the senior correctional supervisor, or qualified

health professional, and submitted to the appropriate authority capable of resolving the prisoner’s issue

in a timely manner.

Medical visits should take place in a private, quiet setting that provides the prisoner with a meaningful

opportunity to speak confidentially with the health care official. For mental health check-ins or rounds,

the American Bar Association recommends that mental health professionals conduct their monitoring

visits in the following manner:

(i) Daily, correctional staff should maintain a log documenting prisoners’ behavior. (ii) Several times

each week, a qualified mental health professional should observe each segregated housing unit, speaking

to unit staff, reviewing the prisoner log, and observing and talking with prisoners who are receiving

mental health treatment. (iii) Weekly, a qualified mental health professional should observe and seek to

talk with each prisoner.

(vi) Monthly, and more frequently if clinically indicated, a qualified mental health professional should see

and treat each prisoner who is receiving mental health treatment. Absent an individualized finding that

security would be compromised, such treatment should take place out of cell, in a setting in which

security staff cannot overhear the conversation.

ABA Standard 23-2.8(c). Substantially similar requirements should also be incorporated into the ACA’s

standards. We support the proposed standard’s minimum requirement that program staff visit prisoners

in restrictive housing on a weekly basis but recommend that the standard include a requirement of

specific documentation for those visits to ensure that program staff’s interaction with prisoners is

meaningful.

For example, program staff should document visits with each prisoner, and specifically notate (1)

whether the prisoner participated in the program, and if the prisoner chose not to participate, state the

reasons for the prisoner refusing to participate; (2) the prisoner’s overall attitude and demeanor during

the program or activity; and (3) the staff member’s general assessment of the value, or benefit, of the

program or activity to the prisoner.”

- Jamelia Morgan


68



“The definition of senior correctional supervisor in charge can be interpreted in many different ways.

Some may say it could be an area Lt., where others may see it as the Shift Commander.”



“The Correctional Program Officer will need to document weekly visits with inmates in restrictive

housing.”


“We may not have the resources for Program Staff to document weekly visits with inmates in restrictive

housing.”


“Agree.”

- Dave Dormire


“I think mental health staff visits and program staff visits should be added.”

- Art Beeler

“Concur with proposed changes, need to a provide a definition of program staff is provided in the

process indicators. Program staff reference classification, case management, chaplaincy, or education

staff?”


69



Edition: Fourth

Standard: 4-4259


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy and procedure govern the selection criteria, supervision, and rotation

of staff who work directly with inmates in segregation on a regular and daily basis.

Comment: Procedures should be established to supervise and evaluate the on-the-job

performance of all staff who work with inmates in segregation, and there should be administrative

procedures for promptly removing ineffective staff. Officers assigned to these positions should

have completed their probationary period. The need for rotation should be based on the intensity

of the assignment.

Protocols: None.


Proposal: Written policy and procedure govern the selection criteria, specialized training, supervision,

and rotation of staff who work directly with inmates in restrictive housing on a regular and daily basis.

Comment: Specialized training such as Crisis Intervention Training and Correctional Behavioral

Health Certification

Protocols: Policy and Procedures

Process Indicators: Staff Roster and training records of staff assigned to the unit.

COMMENTS:

“Rotation of staff is included in this standard, both the original and the proposal, but the standard needs

to include more detail on what rotation should be included. The standard needs to identify what rotation

means and how extensive/inclusive it needs to be – now many facilities show compliance with this

standard by showing there is “some” movement out of the segregation units. This falls short of what the

standard needs to state.”

- Susan J. Jones



70



“Partial Agreement. Specialized training is a practice however it is not in policy. Rotations are not

mandatory and unit assignment is outlined in “Specialized Unit” policy. We believe Specialized training

should also include Suicide Prevention, CORE Correctional Practices and Working with Offenders with

Mental Illness.”


“Refresher or updated training required annually for steady area officers. Rotational staff identified for

backup tours, meal and vacation relief must have no less than an enhanced orientation to segregated

populations.”

- Diane Murray Ward


“Suggest clarifying that this applies to security staff who are permanently assigned to these posts.”

- James M LeBlanc

- Secretary


“The proposed revisions to 4-4259 and to 4-ALDF-2A-54 formalize the training and requirements of staff

entrusted to work in the restrictive housing unit by requiring “specialized training.” In both instances,

the additions make the respective standards consistent with the requirements of ABA Standards 23-10.3(b)

and (c).”

- Bruce Nicholson

“The “specialized training” required of staff to work directly with inmates in restrictive housing on a

regular and daily basis will require the development of a lesson plan.

We need to define what “Correctional Behavioral Health Certification” means.”


“We are supportive of this proposal with the understanding that it has to comply with our labor

agreements.”

- Dave Dormire


71



“Add mental health first aid – corrections to the types of training suggested.”

- Art Beeler

“Concur with recommendation.”


72



Edition: Fourth

Standard: 4-4260


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that staff operating segregation units

maintain a permanent log.

Comment: The log should contain the following information for each inmate admitted to

segregation: name, number, housing location, date admitted, type of infraction or reason for

admission, tentative release date, and special medical or psychiatric problems or needs. The log

also should be used to record all visits by officials who inspect the units or counsel the inmates,

all unusual inmate behavior, and all releases.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that staff operating restrictive housing units

maintain a permanent log and logs are reviewed monthly by the warden and health authority.

Comment: The log should contain the following information for each inmate admitted to

restrictive housing: name, number, housing location, date admitted, type of infraction or reason

for admission, tentative release date, and special medical or behavioral health problems or needs.

The log also should be used to record all visits by officials who inspect the units or counsel the

inmates, all unusual inmate behavior, and all releases.


Process Indicators: Logs. Reviewed by Warden or Healthcare authority

COMMENTS:

“Process indicators include that the warden review the logs. This is an unrealistic process. If this

remains in this standard, need more information – extent of review and does this mean they review every

log?”

- Susan J. Jones



“Were multiple logs considered?”

- Ryan Quirk

- Psychologist


73



“Add word "LOG" to standard: Written policy, procedure, and practice provide that staff operating

restrictive housing units maintain a permanent "LOG" and logs are reviewed monthly by the warden and

health authority.”

- Andrew Albright



“Do not agree. Current Practice, Log books are reviewed by the Unit Sgt. daily. We believe review by the

Warden and Health Care Authority is an inefficient use of time.”


“The standard propose that the warden AND heath authority review RHU logs monthly. However, the

process indicator suggest the logs can be reviewed by the warden OR health authority. Can we clarify the

AND/OR related to this standard?”

- Tony Wilkes

- Chief of Corrections

- Davidson County Sheriff’s Office

“Does not see the need or justification to require wardens and health care authorities to review routine

housing unit/pod shift logs. Recommend changing the proposal to read - "Written policy, procedure, and

practice provide that staff operating restrictive housing units maintain a permanent log. Logs are

reviewed monthly by supervisory staff."”

- Kathy Sligar



“The Nebraska Department of Corrections would like to request "and health authority" be changed to "or

health authority" as stated in the Process Indicator section.”

- Jodi Witte



74



“Again RH is used as a location. It is difficult to document a review of a log. The proposal calls for

Warden "and" Health Authority, where the process indicator states "or" Could this be Warden or

designee? Should allow for electronic logs maybe?”



“The standard requires that restrictive housing unit logs must be reviewed monthly by the warden and the

health authority. In small to medium sized facilities, the health care authority may be part-time or

contractual. Their time is often very limited and to utilize it for general log review seems less than

efficient. The requirement of a general log review by medical staff could be accomplished by an on-site

full time supervising medical or treatment staff member. This is not a medical log — this is the log of all

daily activities. You could add “or designee” to the health care authority requirement to remedy this.”

- Richard L Stalder


“Recommend revising and stating that the warden or designee appointed by the warden review the logs

monthly.”

- Kent Peck

“Recommendation for log review process by Warden/ OR Designee and Health Care Authority/ OR

Designee.”

- Tori Raiford



“Extensive workload increase on our Wardens and Health Authority. Suggest allowing "appropriate

designee."”

- James M LeBlanc

- Secretary


75



“This revision proposes to add language to require the Warden to review Restrictive Housing Unit(s)

permanent log on a monthly basis. I believe this should read: "Warden or specific designee" . More

language could also specify that the designee be identified in writing and be of the rank of

Deputy/Assistant Warden or highest ranking security officer.”

- Charles Albino

- President/CEO

- Corrections Advisory Group, LLC

“In regards to the policy, procedure and practice that staff operating restrictive housing units maintains

a permanent log or logs are reviewed monthly by the warden and health authority, IMS will need an

upgrade in order to properly log and review, moreover instead of the “warden” use the wording

“designee” and replace “health authority” with “health facility or agency”.”


“Requiring the monthly review of the logs by the warden and health authority may be difficult to

implement. Perhaps adding in warden or designee and health authority or designee would meet the spirit

of this proposed revision.”


“Superintendent does not have time to review inmate IMS logs”


“This information is captured and reviewed but not directly by the Warden but the Warden’s designee.

This is especially true for Wardens in our large facilities.”

- Dave Dormire


“is monthly enough?”

- Art Beeler

“Would require Warden to review and sign every file each month, in excess of several hundred at some

facilities. Reword to "Warden or designee".”


76



Edition: Fourth

Standard: 4-4261


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that all inmates in segregation are

provided prescribed medication, clothing that is not degrading and access to basic personal items for use

in their cells unless there is imminent danger that an inmate or any other inmate(s) will destroy an item or

induce self-injury.

Comment: Inmates in segregation should be provided basic items needed for personal hygiene as

well as items such as eyeglasses and writing materials. Clothing should be that of the general

population unless an adjustment is necessary for self-protection, such as removal of a belt to

prevent a suicide attempt, and any clothing adjustment should be justified in writing by an

appropriate official. If a supervisor judges that there is imminent danger that an inmate will

destroy an item or use it to induce self-injury, the inmate may be deprived of the item; in such

cases, every effort should be made to supply a substitute for the item or to permit the inmate to

use the item under supervision of an officer.

Protocols: None.


Proposal:

4-4261: Written policy, procedure, and practice provide that all inmates in restrictive housing are

provided medication as prescribed.

Protocols: Written policy and procedure, property and service logs

Process Indicators: Restrictive Housing sign in log. Medication administration records. Doctor’s

orders. Completed MAR. Timelines of medication.

COMMENTS:

“I would recommend establishing a time period for next meaningful review (including review by

supervisor). Otherwise, it seems that restrictions would continue without end. Recommend that document

(containing justification) be placed on the cell door or other common area for purposes of

communication across shifts.”

- Ryan Quirk

- Psychologist


77



“Agree with terminology, otherwise leave standard as is has worked for several years”

- William Dean

“Partial Agreement. Current Practice, with the exception of “clothing should be that of the general

population unless adjustment is needed”. All offender assigned to restrictive housing are provided a t-

shirt, underwear, sock, sandals and a jump suit.”


“Comments to the proposed standard are no longer applicable and do not refer to prescribed

medications. These need to be deleted and revised accordingly as do the new Process Indicators.

Reference to property, service logs and cell inspections should be moved to 4-4261-1.”

- Kathy Sligar



“Please update Comment, Protocol and Process Indicator sections to reflect proposed revisions to

standard.”

- Jodi Witte



“Comments don't apply to standard.”

- James M LeBlanc

- Secretary


“It appears the comment for this proposed standard was left in error. If not, offenders in segregation are

provided clothes but they are not the same clothes as general population offenders. We prefer to maintain

this policy.”

- Dave Dormire


“Comment does not match standard.”



78



Edition: Fourth

Standard: New Standard 4-4261-1


Facility Size: N/A

Accredited: N/A


Proposal:

4-4261-1: Written policy, procedure, and practice provide that all inmates in restrictive housing are

provided suitable clothing, and access to basic personal items for use in their cells unless there is

imminent danger that an inmate or any other inmate(s) will destroy an item or induce self-injury.

Comment: Inmates in restrictive housing should be provided basic items needed for personal

hygiene as well as items such as eyeglasses and writing materials. Clothing should be that of the

general population unless an adjustment is necessary for self-protection, such as removal of a belt

to prevent a suicide attempt, and any clothing adjustment should be justified in writing by an

appropriate official. If a supervisor judges that there is imminent danger that an inmate will

destroy an item or use it to induce self-injury, the inmate may be deprived of the item; in such

cases, every effort should be made to supply a substitute for the item or to permit the inmate to

use the item under supervision of an officer.

Protocols: Written policy and procedure, property and service logs

Process Indicators: Complete property/service logs, cell inspection documentation, observation,

laundry log, interviews.

COMMENTS:

“Partial agreement. See 4-4261.”


“Process Indicators: Recommend "removing medication administration records, doctor's orders, MAR is

filled out, timeliness of medication" as they are no longer applicable to this standard.”

- Kathy Sligar



79



“Please update Comment, Protocol and Process Indicator sections to reflect proposed revision to

standard.”

- Jodi Witte



“I have concerns about the comment suggesting that the same clothing be provided to this population as

provided to general population.”

- James M LeBlanc

- Secretary


“Our general population inmates have uniforms that have belts, zippers and buttons which would be a

major security issue in a restrictive housing unit. Our inmates wear scrub uniforms (not jumpsuits) that

are similar to GP uniforms but without the belts, zippers and buttons on them. Inmates in restrictive

housing are placed in yellow scrub uniforms for easy identification for security reasons. This is not

demeaning but a necessary security issue. We believe this standard needs more review”

- John Dunn

“The process indicators noted in the new standard do not seem like they belong. The medication is

required by a different standard.”


“This new standard notes that restrictive housing clothing be the same as general population unless there

is a risk of self-harm etc. and any clothing adjustment be justified in writing. There is no provision for

jumpsuits. More discussion may be needed.”


“Offenders in segregation are provided clothes but they are not the same clothes as general population

offenders. We prefer to maintain this policy.”

- Dave Dormire


“Concur.”


80



Edition: Fourth

Standard: 4-4262


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation have the

opportunity to shave and shower at least three times per week.

Comment: Inmates in segregation should have the opportunity to maintain an acceptable level of

personal hygiene unless these procedures cause an undue security hazard. If conditions permit,

the inmates should be able to shower daily.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing have the

opportunity to shave and shower at least three times per week. In instances where inmates are not

allowed to shave or shower, these instances must be documented and reviewed by the senior correctional

supervisor in charge.

Comment: Inmates in restrictive housing should have the opportunity to maintain an acceptable

level of personal hygiene unless these procedures cause an undue security hazard. If conditions

permit, the inmates should be able to shower daily. Issued personal hygiene equipment should be

controlled and accounted for.


Process Indicators: Documentation of deviation from standard requirements, inventory reports,

issue logs, daily shift logs, building schedules

COMMENTS:

“Related to 4-426-1: recommend establishing time for next meaningful review (including by a supervisor)

when any item or activity is restricted. Also, require documentation of justification for restriction.”

- Ryan Quirk

- Psychologist


81



“I recommend adding language that specifies opportunities are provide during normal operational hours

of 1st/2nd shifts. This would prevent systems from providing opportunities during abnormal hours on 3rd

shift where many offenders decline or are simply not awake.”

- Andrew Albright



-



“Written policy, procedure, and practice provide that inmates in restrictive housing have the opportunity

to shower at least 3 times per week along with the opportunity to shave and receive a haircut at least

once every 30 days, unless a documented medical condition requires shaving more frequent. Instances

where inmates are not allowed to shower must be documented and reviewed by the senior correctional

supervisor in charge.”

- Kathy Sligar



“Standard 4-4262 is confusing. The Proposal indicates that restrictive housing inmates should have the

ability to shower three times per week, but the comment indicates that they should be able to shower

daily.”



“Aside/Query : Is there a charge for personal hygiene items?”

- Diane Murray Ward


82












- Bruce Nicholson

“It is suggested that inmates who refuse to shave or shower should be documented and reviewed by the

senior correctional supervisor in charge.

The daily documentation is very resource intensive.”


“We have no concerns with this proposed standard except we do not allow offenders in maximum security

prison segregation units to shave.”

- Dave Dormire


“No objections. Would require increased supervisory presence.”


83



Edition: Fourth

Standard: 4-4263


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation receive

laundry, barbering, and hair care services and are issued and exchange clothing, bedding, and linen on the

same basis as inmates in the general population. Exceptions are permitted only when found necessary by

the senior officer on duty; any exception is recorded in the unit log and justified in writing.

Comment: None.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing receive

laundry and hair care services and are issued and exchange clothing, bedding, and linen on the same basis

as inmates in the general population. Exceptions are permitted only when found necessary by the senior

officer on duty; any exception is recorded in the unit log and justified in writing.

Comment: None.


Process Indicators: Unit log, unit schedule, and documentation of exceptions signed by senior

officer.

COMMENTS:

“Recommend ending first sentence after "hair care services". Current standard requires systems to

provide laundry, barbering, and hair care services at same basis as GP and this is not

necessary/reasonable. PROPOSE: Written policy, procedure, and practice provide that inmates in RH

receive laundry, barbering, and hair care services. RH inmates are also provided with clothing, bedding,

and linen issue and exchange on the same basis as inmates in the GP. Exceptions are permitted only....”

- Andrew Albright





84



“It is not possible to allow segregation offenders to have the same access to barber services as general

population offenders.”

- Dave Dormire


85

Restrictive Housing Committee-022


Edition: Fourth

Standard: 4-4264


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised January 2011): Alternative meal service may be provided to an inmate in

segregation who uses food or food service equipment in a manner that is hazardous to self, staff, or other

inmates. Alternative meal service is on an individual basis, is based on health or safety considerations

only, meets basic nutritional requirements, and occurs with the written approval of the

warden/superintendent, or designee and responsible health authority, or designee. The substitution period

shall not exceed seven days.

Comment: None.

Protocols: None.


Proposal: Alternative meal service may be provided to an inmate in restrictive housing who uses food or

food service equipment in a manner that is hazardous to self, staff, or other inmates. Alternative meal

service is on an individual basis, is based on health or safety considerations only, meets basic nutritional

requirements, and occurs with the written approval of the warden/superintendent, or designee and facility

health care authority or designee. The substitution period shall not exceed seven days unless it is

extended with the review of the authorizing administrator and the approval of the health care practitioner

*Note: See definition with amendment for “Alternative Meal Service”

Comment: Health assessment/evaluation should be done within 7 days to ensure that the inmate

is not malnourished

Protocols: Written policy and procedure, unit log (basic nutritional requirements- Documentation

signed off my a registered dietician or licensed nutritionist)

Process Indicators: Completed unit log

COMMENTS:

“Again, recommend establishing time period for required review (especially since it involves food). -

include stipulation requiring "of equal or similar caloric content"? -eliminate the practice of using

"nutra-loaf" or "the loaf"? -make explicit that alternative meal service should never be used for

discipline?”

- Ryan Quirk

- Psychologist


86





“Malnourishment is not the only concern. In concert with ST4-4256, nutrition in conjunction with

medication can play a key role in abating certain behaviors.”

- Diane Murray Ward


“Suggest that the standard apply after the first seven days.”

- James M LeBlanc

- Secretary


“Not sure about the objective of this “ new” comment. Substitution shall not exceed 7 days unless

healthcare practitioner approves but assessment for malnourishment shall be done within 7 days ( first

day on the diet will meet the standard. I suggest “ for inmates where substitution is extended for more

than 7 days, a health evaluation shall be done within 7 days of the extension, to ensure that there is no

adverse effects on inmate’s health from the substitution.”

- Raman Singh

“Alternative meal service should be palatable, nutritious, well-prepared, and served in a suitable manner

to the prisoner. MR 22(1); ABA 23-3.4. Food should never be withheld, or used as a form of

punishment.”

- Jamelia Morgan











- Bruce Nicholson

87



“The standard uses the wording “Alternative meal service”, since it is not actually a service but a meal it

is recommended this be changed to be more accurate.

It may need to be reviewed why the health care authority needs to approve the alternative meal service

since the only change is the method of delivery.”


“Concerning the protocols of the unit log (basic nutritional requirement – Documentation signed off by a

registered dietician or licensed nutritionist) for what time period?

It may not be feasible to have a registered dietician sign off every time an inmate is placed on alternative

meal status. Should be less than 2 weeks or more money.”


“Alternate feeding in MA is the delivery process. We do not alter meal.”


“Agree.”

- Dave Dormire


“Move comment "Health assessment/evaluation should be done within 7 days to ensure that the inmate is

not malnourished." into the standard. Cannot audit a comment, believe it is important to be a standard to

meet the intent.”



88



Edition: Fourth

Standard: 4-4265


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that whenever an inmate in

segregation is deprived of any usually authorized item or activity a report of the action is filed in the

inmate's case record and forwarded to the chief security officer.

Comment: The report should identify the inmate, item or activity deprived of, and the reasons for

the action. The report should be forwarded to the chief security officer as soon as possible;

approval for removing all of an inmate’s personal items should be obtained in advance from the

warden/superintendent or designee. No items or activity should be withheld for the purpose of

punishment or for longer than necessary to ensure the safety and well-being of the inmate and

others.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that whenever an inmate in restrictive housing

is deprived of any usually authorized item or activity; a report of the action is filed in the inmate's case

record and forwarded to the chief security officer.

Comment: The report should identify the inmate, item or activity deprived of, and the reasons for

the action. The report should be forwarded to the chief security officer as soon as possible;

approval for removing all of an inmate’s personal items should be obtained in advance from the

warden/superintendent or designee. No items or activity should be withheld for the purpose of

punishment or for longer than necessary to ensure the safety and well-being of the inmate and

others.


Process Indicators: Documented report of action and inmate record

COMMENTS:

“Mention of "report of action", but where posted and how communicated? if personal items are approved

for removal, any stipulation that cell will be brought into compliance, or documentation of reason(s) why

items were not removed? Use of force "justified" to remove personal items?”

- Ryan Quirk

- Psychologist


89





“Chief of Security is specific and applies to only certain states. To ensure consistency this title may need

to be revised.”

- Kathy Sligar



“Agree.”

- Dave Dormire


90



Edition: Fourth

Standard: 4-4266


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation can write

and receive letters on the same basis as inmates in the general population.

Comment: Letters should be delivered promptly. Any item rejected consistent with policy and

procedure should be returned to sender, and the inmate should be advised of the reason for

rejection.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing can write

and receive letters on the same basis as inmates in the general population.

Comment: Letters should be delivered promptly. Any item rejected consistent with policy and

procedure should be returned to sender, and the inmate should be advised of the reason for

rejection.

Protocols: Written policies and procedures.

Process Indicators: Documents maintained for any instance of exceptions. Have log, inmate

interviews.

COMMENTS:



“We generally support this.”

- Dave Dormire


91



Edition: Fourth

Standard: 4-4267


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation have

opportunities for visitation unless there are substantial reasons for withholding such privileges.

Comment: Every effort should be made to notify approved visitors of any restrictions on visiting;

if time allows, the burden of this notification may be placed on the inmate.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing have

opportunities for visitation unless there are substantial documented reasons for withholding such

privileges.

Comment: Every effort should be made to notify approved visitors of any restrictions on visiting;

if time allows, the burden of this notification may be placed on the inmate.

Protocols: Written policy and procedures.

Process Indicators: Documentation of visitation denial and visiting log

COMMENTS:

“Any limitations on who can visit? Immediate family and spouse only, for example?”

- Ryan Quirk

- Psychologist




“Proposal: "Substantial" should be eliminated as it was replaced with "documented."”

- Kathy Sligar



92



“We support the addition of the need to document a justification for withholding the privilege of

visitation. But we recommend further protections for visitation given the importance of visitation for the

development of healthy human functioning in prison and its known role in reducing recidivism and

promoting rehabilitation.

See, e.g., Karen Casey-Acevedo & Tim Bakken, The Effects of Visitation on Women in Prison, 25 INT’L J.

COMP. & APP. CRIM. JUST. 48 (2001); William D. Bales & Daniel P. Mears, Inmate Social Ties and

the Transition to Society: Does Visitation Reduce Recidivism? 45 J. RES. CRIME & DELINQ. 287

(2008); Nance E. Schafer, Exploring the Link between Visits and Parole Success: A Survey of Prison

Visitors, 38 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 17 (1994);Richard Tewksbury

& Matthew DeMichele, Going to Prison: A Prison Visitation Program, 85 PRISON J. 292 (2005); John

D. Wooldredge, Inmate Experiences and Psychological Well-Being, 26 CRIM. J. & BEHAV. 235 (1999).

For this reason, we recommend language in the standard that clarifies that prisoners should be permitted

contact visits unless there is a substantial, individualized, and documented security reason for prohibiting

these visits.

See ABA Standard 23-8.5(e). Where there is a substantial, individualized, and documented security

reason for prohibiting contact visits, in-person, non-contact visits should be permitted unless there is a

substantial, individualized, and documented security reason for prohibiting those visits. No visit should

be denied outright unless there is a documented security reason, imminent threat to the safety of the

prisoner, staff, or other prisoners, or threat to the overall security of the facility

Any denial of contact or non-contact visits must be approved by the Warden or the stated designee. And

after some period of time, beginning at 30 days, the denial of visits to a prisoner should be re-evaluated

and discontinued if the individualized security reason for such denial can no longer be documented.”

- Jamelia Morgan


“Agree.”

- Dave Dormire


93



Edition: Fourth

Standard: 4-4268


Facility Size: N/A

Accredited: N/A



access to legal materials.

Comment: To ensure legal rights, inmates in segregation should have access to both personal

legal materials and available legal reference materials. Reasonable arrangements should be made

to assist the inmates meeting court deadlines.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing have access

to legal materials.

Comment: To ensure legal rights, inmates in restrictive housing should have access to both

personal legal materials and available legal reference materials. Reasonable arrangements should

be made to assist the inmates meeting court deadlines.


Process Indicators: Logbook of legal material usage and direct observation

COMMENTS:



“Agree.”

- Dave Dormire


“This needs to include access to legal forms and copying services to allow for documents to be filed with

the Court”

- Art Beeler

94



Edition: Fourth

Standard: 4-4269


Facility Size: N/A

Accredited: N/A



access to reading materials.

Comment: Inmates in segregation should be provided a sufficient quantity of reading materials

and have an opportunity to borrow reading materials from the institution’s library.

Protocols: None.



to reading materials.

Comment: Inmates in restrictive housing should be provided a sufficient quantity of reading

materials and have an opportunity to borrow reading materials from the institution’s library.

Protocols: Written policy and procedure.

Process Indicators: Logbook for reading material usage

COMMENTS:

“Number and quality of reading material intentionally vague? recommend that reading material be

available at all times, even for those inmates just arriving in RH? Caveat about restricting such reading

material when contraindicated (recent use of paper to cover cell, window for example), or is that

assumed?”

- Ryan Quirk

- Psychologist




95



“Process Indicators - Recommend adding the following: submitted library requests, unit logs showing

librarian in the unit, photos of library books maintained in the unit if applicable.”

- Kathy Sligar



“We recommend that this standard also specify that permitted reading material should be varied (e.g.,

fiction, non-fiction, news, etc.) and accessible. For example, prisoners should have access to reading

materials in their first-language. Prisoners who are blind, or vision impaired, should have access to

reading materials that are in Braille, large-print, or in any other format that makes such texts accessible

to them.”

- Jamelia Morgan


“If the existing standard is for inmates in segregation to have access and sufficient quantity of reading

materials is the proposal to track usage necessary?”


“Agree.”

- Dave Dormire


“Should say that a member of the library or education staff shall visit restrictive housing units on a

weekly basis to determine what services are being requested.”

- Art Beeler

96



Edition: Fourth

Standard: 4-4270


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in segregation receive a

minimum of one hour of exercise per day outside their cells, five days per week, unless security or safety

considerations dictate otherwise.

Comment: Inmates in segregation should be provided with the opportunity to exercise in an area

designated for this purpose, with opportunities to exercise outdoors, weather permitting, unless

security or safety considerations dictate otherwise. A written record should be kept of each

inmate’s participation in the exercise program. Reasons for imposition of constraints should be

documented.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing receive a

minimum of one hour of exercise outside their cells, five days per week, unless security or safety

considerations dictate otherwise.

Comment: Inmates in restrictive housing should be provided with the opportunity to exercise in

an area designated for this purpose, with opportunities to exercise outdoors, weather permitting,

unless security or safety considerations dictate otherwise. A written record should be kept of each

inmate’s participation in the exercise program. Reasons for imposition of constraints should be

documented.


Process Indicators: Recreation and shower logbook. Documentation of denial

COMMENTS:

“I think this standard should require outdoor exercise areas and access. I believe that the standards

should come in line with federal court decisions that have found that the absence of outdoor recreation is

unconstitutional (Troy Anderson v. State of Colorado, Department of Corrections - Judge R. Brooke

Jackson, 2012).”

- Susan J. Jones



97



“Written policy, procedure, and practice provide that inmates in restrictive housing receive a minimum of

two hours of exercise outside their cells, five days per week, unless security or safety considerations

dictate otherwise.”




“I recommend adding language that specifies opportunities are provide during normal operational hours

of 1st/2nd shifts. This would prevent systems from providing opportunities during abnormal hours on 3rd

shift where many offenders decline or are simply not awake.”

- Andrew Albright





“Comment: Recommend deleting the following sentence from the Comment section - A written record

should be kept of each inmate's participation in the exercise program. A written record of each inmate's

participation could be looked at as a Process Indicator but it should not be a requirement to the standard.

Process Indicators: photos of exercise areas, log or schedule of exercise times, documentation of security

and/or safety concerns.”

- Kathy Sligar



“We recommend that this standard be expanded to include more daily time outside of the cell for exercise.

Five hours a week is insufficient to maintain mental and physical health. At the barest minimum, the ACA

should adopt a standard that requires at least one hour of out-of-cell daily exercise every day of the week

exemplified in other standards. See MR 23(1); ABA 23-3.6. Weather permitting, prisoners should have

access to outdoor spaces that have a view of the sky and the outdoors, as well as access to fresh air.”

- Jamelia Morgan


98



“This will have an operational impact on our department.”

- Dave Dormire


“I am sure everyone had large discussions regarding this. With the settlement agreements across the

board as well as Meltzer universally saying, without any empirical evidence by the way, that offenders

need 20 hours out of cell time a week, I would encourage the committee to look at increasing the hours to

ten hours of recreation per week with a note that they may be provided in no more than two hour blocks.

I would also allow recreation to be provided seven days a week. Finally, I would encourage ACA to

commission an empirical study on just what are the optimum out of cells hours per week.”

- Art Beeler

99



Edition: Fourth

Standard: 4-4271


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2005) Written policy, procedure, and practice provide that inmates

in administrative segregation and protective custody are allowed telephone privileges.

Comment: None.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that inmates in restrictive housing are allowed

telephone privileges unless security or safety considerations dictate otherwise. Restrictions would not

apply to calls related specifically to access to the attorney of record.

Comment: None.


Process Indicators: Phone log. Documentation of denial

COMMENTS:

“I recommend revising language of 4271 to include components of 4272 to eliminate need for 2

redundant standards: "Written, policy, procedure, and practice provide that inmates in RH, including PC,

Disciplinary Detention, and Administrative Status, are allowed telephone privileges unless security or

safety considerations dictate otherwise. Restrictions would not apply to calls related specifically to access

to the attorney of record.”

- Andrew Albright





100



“The standard should be modified to clarify that any denial of phone privileges be made after an

individualized and documented determination. Prisoners should have phone privileges unless there is a

substantial, individualized, and documented security reason for prohibiting these privileges. Any decision

denying phone privileges for security reasons must be approved by the warden, or the warden’s designee.

Permanent denials of phone privileges, without ongoing substantial, individualized, and documented

security reasons, should be strictly prohibited. The standard must also account for the needs of prisoners

with hearing or speech impairments.

“Correctional authorities should provide prisoners with hearing or speech impairments ready access to

telecommunications devices for the deaf or comparable equipment and to telephones with volume control,

and should facilitate prisoners’ telephonic communication with persons in the community who have such

disabilities.” ABA Standard 23-8.7.

Further, legal calls should not be limited to an attorney of record. That requirement should be eliminated

from the standard because access to attorneys may not be curtailed under law and such access is not

limited to the attorney of record. Prisoners may have access to attorneys interested in protecting the

prisoner’s legal rights, and assisting the prisoner with potential legal claims.

See, e.g., Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 643-45 (6th Cir.

2015) (determining that prisoners have a right to have confidential communications with attorneys from

legal services organizations, like the ACLU, prior to formally establishing an attorney-client

relationship).”

- Jamelia Morgan


“Agree.”

- Dave Dormire


101



Edition: Fourth

Standard: 4-4273


Facility Size: N/A

Accredited: N/A


Existing Standard: Written policy, procedure, and practice provide that inmates in administrative

segregation and protective custody have access to programs and services that include, but are not limited

to, the following: educational services, commissary services, library services, social services, counseling

services, religious guidance, and recreational programs.

Comment: Although services and programs cannot be identical to those provided to the general

population, there should be no major differences for reasons other than danger to life, health, or

safety. Inmates in administrative segregation and protective custody should have the opportunity

to receive treatment from professionals such as social workers, psychologists, counselors, and

psychiatrists. The standard applies to inmates held in disciplinary detention for more than 60 days.

Protocols: None.



to programs and services that include, but are not limited to the following: educational services,

commissary services, library services, social services, behavioral health and treatment services, religious

guidance, and recreational programs.

Comment: Although services and programs cannot be identical to those provided to the general

population, there should be no major differences for reasons other than danger to life, health, or

safety. Inmates in administrative segregation and protective custody will have the opportunity to

receive treatment from professionals such as social workers, psychologists, counselors, and

psychiatrists. The standard applies to inmates held in restrictive housing for more than 60 days.


Process Indicators: Logs/medical records for prescribed treatment and whether it was provided

COMMENTS:



102



“Since this standard previously applied to "Administrative Segregation" it should now apply to "Extended

Restrictive Housing." Proposal - recommend adding "extended" before restrictive housing. Comments -

delete "administrative segregation"; add in its place "extended restrictive housing."”

- Kathy Sligar


- Colorado Department Of Corrections

“The comment that indicates this standard applies after 60 days should be moved into the standard

language.”

- James M LeBlanc

- Secretary


“We support the inclusion of behavioral health and treatment services for prisoners on restrictive

housing and protective custody status but note that the standard should be strengthened to make clear

that access to social workers, psychologists, counselors, and psychiatrists must be permitted from the

time of initial placement into any such status or housing. Prisoners should have immediate access to

mental health and program staff.

We also recommend that the standard require that prisoners in protective custody also have access to

jobs where a designated authority determines that such position is appropriate and where documented

security and safety concerns do not weigh against such placement. We further recommend adding a

review of unit schedules and logs to the listed process indicators.”

- Jamelia Morgan


“To the extent possible, we try to do all of these.”

- Dave Dormire


103



Edition: Fourth

Standard: 4-4288


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2013): Written policy, procedure, and practice provide that new

inmates receive written orientation materials and/or translations in their own language. These materials

may also be provided electronically, but inmates in segregation must be provided the information in a

written format so that their access to the information is not impeded by their custody status. When a

literacy problem exists, a staff member assists the inmate in understanding the material. Completion of

orientation is documented by a statement signed and dated by the inmate.

Comment: Orientation should include formal classes, distribution of written materials about the

institution’s programs, rules, and regulations, and discussion. Orientation should also be used to

observe inmate behavior and to identify special problems. The use of electronic kiosks should

implement strategies to allow access to information by general population inmates without

interference by facility staff without a valid security-related reason. Inmates who are unable to

read and write should be assisted through case management services provided by the facility.

Protocols: None.


Proposal: Written policy, procedure, and practice provide that new inmates receive written orientation

materials and/or translations in their own language. These materials may also be provided electronically,

but inmates in restrictive housing must be provided the information in a written format so that their access

to the information is not impeded by their custody status. When a literacy problem exists, a staff member

assists the inmate in understanding the material. Completion of orientation is documented by a statement

signed and dated by the inmate.

Comment: Orientation should include formal classes, distribution of written materials about the

institution’s programs, rules, and regulations, and discussion. Orientation should also be used to

observe inmate behavior and to identify special problems. The use of electronic kiosks should

implement strategies to allow access to information by general population inmates without

interference by facility staff without a valid security-related reason. Inmates who are unable to

read and write should be assisted through case management services provided by the facility.


Process Indicators: Signed receipts, logs, intake records, and inmate interviews

104


COMMENTS:

“Agree. Current Practice, offenders receive a unit handbook. If they speak a foreign language and need

translation services this service is provided. Do not agree with “comment” orientation should include

formal classes.”


“We recommend that this standard also require that prisoners with disabilities be appropriately

accommodated. If the prisoner is blind, or has a visual impairment recorded by the institution or self-

reported by the prisoner, written orientation materials shall be presented in Braille, large print, audio

format, or through other assistive devices such that these written materials are provided in a format

accessible to the prisoner.”

- Jamelia Morgan


“We disagree with this proposed standard. In Missouri, we generally have very few offenders that cannot

speak or understand English. If they do we assist them.”

- Dave Dormire


105



Edition: Fourth

Standard: 4-4400


Facility Size: N/A

Accredited: N/A


Existing Standard: (MANDATORY) (Revised January 2006) When an offender is transferred to

segregation, health care staff will be informed immediately and will provide a screening and review as

indicated by the protocols established by the health authority. Unless medical attention is needed more

frequently, each offender in segregation receives a daily visit from a qualified health care professional.

The visit ensures that offenders have access to the health care system. The presence of a health care

provider in segregation is announced and recorded. The frequency of physician visits to segregation units

is determined by the health authority.

Comment: Health care providers’ visits are intended to be screening rounds and are not meant to

be clinical encounters. Those offenders who request sick call are evaluated by a health care

provider who determines the appropriate setting for further medical attention and examination.

Health care providers may request that an offender be removed from a cell or housing area for

medical attention or examination. All sick encounters are documented in the offender’s health

record.

Protocols: None.


Proposal: (MANDATORY) When an offender is transferred to restrictive housing, health care staff will

be informed immediately and will provide a screening and review as indicated by the protocols

established by the health authority. Unless medical attention is needed more frequently, each offender in

restrictive housing receives a daily visit from a qualified health care professional. The visit ensures that

offenders have access to the health care system. The presence of a health care provider in restrictive

housing is announced and recorded. The frequency of physician visits to restrictive housing units is

determined by the health authority.

Comment: Health care providers’ visits are intended to be screening rounds and are not meant to

be clinical encounters. Those offenders who request sick call are evaluated by a health care

provider who determines the appropriate setting for further medical attention and examination.

Health care providers may request that an offender be removed from a cell or housing area for

medical attention or examination. All sick encounters are documented in the offender’s health

record.

Protocols: Policies and procedures, unit logs, sign and sign out sheets, cell check logs

Process Indicators: Logs, observation, and healthcare staff schedule

106


COMMENTS:

“Does this standard apply to mental health services and qualified mental health professionals too?”

- Ryan Quirk

- Psychologist


“Proposal 32 relating to the requirement that the health care provider be notified immediately when a

person is transferred to restrictive housing should also require a meaningful examination of the

individual by the health care provider within 72 hours rather than relying on the daily health care rounds,

in order to determine if there is any contraindication to the continued confinement of the individual

within restrictive housing.”

- Martin Horn


“A mental health screening assessment by a qualified mental health professional should also be done by

either a QMHP or trained RN were purposes of suicide screening and continuity of care. See also APA’s

comments regarding Restrictive Housing Committee – 013.”






“Standard 4-4258 and Standard 4-4400 requires that medical staff see all inmates in restrictive housing

daily. I think this is unnecessary and overly burdensome.”



“We recommend adding an additional standard to require that health care staff must also be informed of

any reasonable accommodations that the prisoner will require during placement in segregation,

including but not limited to hearing aids, glasses, mobility devices, such as wheelchairs, walkers, or

canes, and other assistive devices.”

- Jamelia Morgan


107



“Under 4-4400, the ACA standards require that an inmate receive a daily visit from a health care

professional that is “not meant to be a clinical encounter[].” While this complies with the requirement in

ABA Standard 23-2.8(c)(i) that correctional staff should document prisoners’ behavior, it does not satisfy

the requirements of subdivisions (c)(ii-v), which require more intensive supervisory care by dedicated

mental health professionals equipped to evaluate an inmate’s mental health status at regular intervals

during their confinement in a restrictive housing unit. The ABA Standards are here corroborated by the

Standards of the National Commission on Correctional Health Care (E-09), which require daily

monitoring by medical staff and at least weekly monitoring my mental health staff.

Therefore, although the ACA Standards represent valuable progress, the oversight of qualified health

care and mental health professionals over the medical status of inmates in restrictive housing deserves to

be strengthened further than the Revisions to 4-4400 presently suggest.”

- Bruce Nicholson

“Agree.”

- Dave Dormire


“Delete "Unless medical attention is needed more frequently, each offender in restrictive housing

receives a daily visit from a qualified health care professional. The visit ensures that offenders have

access to the health care system. The presence of a health care provider in restrictive housing is

announced & recorded. The frequency of physician visits to restrictive housing units is determined by the

health authority." from this standard & incorporate into 4-4258 which covers part of standard.”



108



Edition: Fourth

Standard: New Standard #1


Facility Size: N/A

Accredited: N/A


Proposal: Written policy and Procedure and practice require that the agency will attempt to

ensure offenders are not released directly into the community from restrictive housing by

developing and implementing a pre-release step down program (see 4-4442). In the event that

the release of an offender directly from restrictive housing into the community is imminent, the

facility will document the justification and receive agency level or designee approval (does not

apply to immediate court order release).

In addition to required release procedures (see 4-4446) the following must be taken at a

minimum

Development of a release plan that is tailored to specific needs of the offender (does not

apply to immediate court order release)

Notification of release to state and local law enforcement

Notify releasing offender to applicable community resources

Victim Notification (if applicable/there is a victim)

COMMENTS:

“Was there consideration of recommending a procedure where a multidisciplinary team routinely

reviews all inmates housed in RH that are scheduled to release to the community within a year (or some

other time period)...and look for ways to involve them in some step-down or transition to a less restrictive

setting prior to release? At the very least connect them to services (including mental health and housing)

in the community?”

- Ryan Quirk

- Psychologist


“This proposed standard should apply to those offenders held for 30+ days within an extended restrictive

housing environment. As short term restrictive housing and/or protective custody may be necessary and

appropriate prior to release. Proposal - add "extended" before restrictive housing throughout paragraph.”

- Kathy Sligar



109



“The Nebraska Department of Corrections would like to request a time frame be added (15 days) to

account for inmates who decide to "check in" to restrictive housing prior to discharge on his/her own

volition, who have already been participating in a release program (4-4442), and would not benefit from

a restrictive housing step-down program as greatly as offenders who have been classified in extended

restrictive housing. The first 30 days in restrictive housing is a risk assessment phase, time to decide

where the right place to house the offender, based on his/her individual issues/needs. 30+ days is a

classification given to the offender (ERH, Administrative Seg.) designed specifically for the offender

through the classification process. It is during this time that offenders would benefit most from a step-

down program as stated in the proposed standard.”

- Jodi Witte



“The agency has no authority to hold an offender for agency level approval of a release. Suggest the

language read agency level notification be required. Also, the step down program is required in new

standard 3, as such it should be removed from this standard as it is duplicative and may cause some

duplication of effort for accreditation staff and auditors.”

- James M LeBlanc

- Secretary


“We strongly support the addition of this standard. Given the potential harms inflicted upon prisoners

held in prolonged isolation, direct release from isolation into the community must be strongly

discouraged. Direct release from isolation can increase recidivism rates, see, e.g., David Lowell, et. al.,

Recidivism of Supermax Prisoners in Washington State, 53 CRIME & DELINQUENCY 633 (Oct. 2007),

available at http://cad.sagepub.com/content/53/4/633.abstract,

and may pose a serious danger to the community, see, e.g., Jennifer Brown & Karen Krummy, Half of

parolees who murdered spent time in solitary confinement, DENVER POST (Sept. 23, 2013),

http://www.denverpost.com/parole/ci_24140370/half-parolees-who-murdered-spent-time-solitary-

confinement.

Accordingly, we recommend that the standard require that prisoners be permitted to participate in a step-

down program with increasing interaction with others for a minimum of six months prior to their release,

unless there is an individualized and documented security reason for a prisoner’s exclusion from such a

program.”

- Jamelia Morgan


110



“The proposed additions contained in New Standard #1 and New ALDF Standards #1 and #2 provide for

the creation of an individualized re-entry plan to assist inmates in returning either to the general

population or to the community from restrictive housing. Under ABA Standard 23-2.9, these plans should

assist the inmate in progressing toward fewer restrictions and lower levels of custody based on good

behavior.

In this respect, the ABA Standard exceeds the constitutional minima set out in Wilkinson v. Austin, 545

U.S. 209 (2005), for which procedural protections require only that there be “some process”; the

revisions should instead adopt the ABA Standard to ensure that the re-entry programs in question serve

their stated purpose of facilitating post-segregation reintegration.”

- Bruce Nicholson

“It will need to be discussed who will approve the imminent release of an offender directly from

restrictive housing into the community (ex. Central Office, Deputy Commissioner, ADC). It is suggested

the individual should be above a Superintendent.”


“This is a new standard that may require some discussion. We need to define what “agency level or

designee approval” means.”


“We agree to the extent possible.”

- Dave Dormire


“Concur, will require a detailed plan of action and appropriate rule and procedure change.”


111



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: The agency shall not place a person with serious mental illness in extended restrictive housing,

unless they present a clear and present danger to staff and other inmates, that is not associated with their

diagnosed mental illness.

Comment: None.


Process Indicators: Initial placement assessment form by a qualified mental health professional

and review by the mental health authority. Logs and medical records.

COMMENTS:

“Based upon the definition and this standard, there appears to be no prohibition against placing inmates

who are diagnosed with personality disorders in restrictive housing. Is that correct?”

- Susan J. Jones



“Proposal 34 should apply as well to other vulnerable populations including those with intellectual

disability, serious cognitive impairment, juveniles (under 18) and the infirm. And where confinement in

restrictive housing is required for these, the provisions listed above should apply.”

- Martin Horn


112



“For the definition of serious mental illness, please see APA’s comments regarding Restrictive Housing

Committee – 001.

In addition, we recommend that the proposal be changed as follows:

Prolonged segregation of adult inmates with serious mental illness, with rare exceptions, should be

avoided due to the potential for harm to such inmates. If an inmate with serious mental illness is placed in

segregation, out-of-cell structured therapeutic activities (i.e., mental health/psychiatric treatment) in

appropriate programming space and adequate unstructured out-of-cell time should be permitted.

Correctional mental health authorities should work closely with administrative custody staff to maximize

access to clinically indicated programming and recreation for these individuals.”




“The last phrase in the standard is confusing and should be removed. Obviously offenders who have

serious mental illness become violent and present a threat to themselves or others and must be placed in

some form of restrictive housing until their mental illness symptoms are addressed.”

- John D. Rees, CCE



“The definition of restricted housing when applied to this standard precludes the housing of seriously

mentally ill inmates who present a clear and present danger to themselves or others to a cell for 22 or

more hours a day if the rationale is related to their mental illness. This is regardless of whether or not

the assignment includes intensive mental health treatment in restricted housing. The goal of not housing

seriously mentally inmates in restricted housing if their “clear and present danger” is related to their

mental illness is not operationally feasible in my opinion. The standard does not specify who makes this

determination. I question whether or not medical or mental health professionals would make such a

determination without a great deal of information and analysis not available in the time frame required

for a decision. There are, often regrettably, no available alternatives to placement in restrictive housing,

(such as assignment to inpatient emergency psychiatric beds). Treatment by appropriate professional

mental health practitioners in a restrictive housing setting may be the only alternative, (and may be an

acceptable alternative). (cont’d)

113



I suggest that the discussion focus on “competence”. First, if the inmate in general population is clearly

stable and functioning well in treatment with or without medication, then removing legitimate

correctional classification and disciplinary alternatives when the inmate presents a clear and present

danger may not be necessary. Their housing in a cell for 22 hours a day or more would still fall under

the requirements and protections of the remaining proposed restrictive housing standards.

In addition, I suggest that the relevant test for assignment to restrictive housing resulting from dangerous

activities should more closely resemble a generalized justice system test of “competence” rather than a

test of “diagnosis”. An inmate’s placement evaluation should not be a function of whether or not his

behaviors relate to his diagnosis, but rather whether or not he is capable of distinguishing acceptable and

unacceptable behaviors at the time for which evaluation is made. This is routinely handled in today’s

correctional environments in review after the placement and before or during the sanctioning phase, not

prior to placement.”

- Richard L Stalder - Delegate Assembly Member

“Limitations based solely on diagnosis does not ensure safety and stability of our prisons. This standard

requires a determination to be made that could result in unintended consequences. I strongly disagree

with this standard based solely on diagnosis.”

- James M LeBlanc

- Secretary


“This needs to be discussed. Louisiana’s definition of SMI is solely clinical. ACA’s definition is more

vague ( includes acting out). Even with our definition, we had 1,703 admissions with SMI in 2014. I wish

that it was easy to distinguish which actions are or are not associated with the diagnosed mental illness

but it is not that easy. I agree with the intent of this proposed standard but this is a tall order and I think

that we need to eat this elephant one bite at a time.”

- Raman Singh

“We support the addition of this standard but as noted above we strongly suggest that it be revised to

exclude individuals with a diagnosed serious mental illness or other mental health condition that makes

them especially vulnerable to the isolation of restrictive housing/solitary confinement.

Decades of research and the repeated findings of the federal courts support the exclusion of individuals

with mental illness from restrictive housing due to their unique vulnerability to its harms – not because

they are less culpable for misconduct (although there may be many instances where that is the case). For

(cont’d)

114



this reason, federal and state courts have repeatedly held that placing individuals with serious mental

illness in such conditions is cruel and unusual punishment under the 8th Amnt.

See, e.g., Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, No. 1:08-cv-013172012, WL 6738517 (S.D.

Ind., Dec. 31, 2012) (holding that the Indiana Department of Correction’s practice of placing prisoners

with serious mental illness in segregation constituted cruel and unusual treatment in violation of the

Eighth Amendment); Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1101-02 (W.D. Wis. 2001) (granting a

preliminary injunction requiring the removal of prisoners with serious mental illness from (cont.

“supermax” custody); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d on other grounds,

243 F.3d 941 (5th Cir. 2001), adhered to on remand, 154 F. Supp. 2d 975 (S.D. Tex. 2001) (“Conditions

in TDCJ-ID’s administrative segregation units clearly violate constitutional standards when imposed on

the subgroup of the plaintiffs’ class made up of mentally-ill prisoners”);

Coleman v. Wilson, 912 F. Supp. 1282, 1320-21 (E.D. Cal. 1995) (finding that the California Department

of Corrections and Rehabilitation was in violation of the Eighth Amendment due to system-wide failure to

provide adequate mental health care, and due to the deliberate indifference of prison officials to the

needs of prisoners with mental illness);

Madrid v. Gomez, 889 F. Supp. 1146, 1265-66 (N.D. Cal. 1995) (holding keeping prisoners with mental

illness or those at a high risk for suffering injury to mental health in Pelican Bay isolation unit

unconstitutional); Casey v. Lewis, 834 F. Supp. 1477, 1549-50 (D. Ariz. 1993) (condemning placement

and retention of prisoners with mental illness on lockdown);

H.B. v. Lewis, 803 F. Supp. 246, 257 (D. Ariz. 1992) (finding Eighth Amendment violation in part

because of the lack of an adequate system for referring prisoners with behavioral problems to psychiatric

staff); Langley v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1988) (holding that evidence of prison

officials’ failure to screen out from SHU “those individuals who, by virtue of their mental condition, are

likely to be severely and adversely affected by placement there” states an 8th Am. claim);

T.R. et al. v. S.C. Dept. of Corrections, C/A No. 2005-CP-40-2925 (S.C. Ct. Comm. Pleas 5th J. Cir. Jan.

8, 2014) (finding major deficiencies in the Department of Corrections’ treatment of prisoners with mental

illness, including solitary confinement, and ordering defendants to submit a remedial plan). In all cases

involving placement decisions for prisoners with mental illnesses, the focus should be on the prisoner’s

vulnerability to the harms caused by isolation rather than on the prisoner’s

culpability. Prisoners with serious mental illnesses should be affirmatively excluded from restrictive

housing. See, e.g., Jeffrey L. Metzner, Class Action Litigation in Correctional Psychiatry, 30 J. AM.

ACAD. PSYCHIATRY L. 19, 26 (2002)

(“Although there may be exceptions, it is my opinion that the standard of care should now require either

exclusion of seriously mentally ill prisoners through the previously referenced screening processes or

their transfer to a specialized mental health program within the supermax prison[.]”). (cont’d)

115



Under no circumstances, and even in cases where prisoners present a clear and present danger to staff

and other prisoners that is not associated with their diagnosed mental illness, should prisoners with

serious mental illness be placed in restrictive housing. In light of the serious risks and harms inflicted

upon prisoners with mental illness held in isolation, we strongly propose that the Committee consider

making New Standard #2 Mandatory.

We also suggest that the standard or at least the commentary make note of the standard of care for

mental health treatment programs in restrictive housing settings. For those prisoners with serious mental

illnesses who must be placed into some form of segregation due to behavioral and/or security issues,

researchers recommend that facilities provide enriched programming that includes “10 to 15 hours per

week of out-of-cell structured therapeutic activities in addition to at least another 10 hours per week of

unstructured exercise or recreation time.” Jeffrey L. Metzner & Joel Dvoskin, An Overview of

Correctional Psychiatry, PSYCHIATRY CLIN. N. AM. 761, 764 (2006).”

- Jamelia Morgan


““New Standard #2” expressly provides for the option of assigning an inmate with diagnosed serious

mental illness to restrictive housing under the condition that they “present a clear and present danger to

staff and other inmates, that is not associated with the diagnosed mental illness.”

The revision to 4-4256 and “New Standard #2” should therefore require, in addition to regular

assessments of the inmates’ mental and behavioral health, that a finding of serious mental illness should

foreclose assignment to a restrictive housing unit altogether.”

- Bruce Nicholson

“In the New Standard one of the criteria for placing an inmate with a serious mental illness into extended

restrictive housing is that it cannot be associated with their diagnosed mental illness. Clarification is

needed on how this is determined.”


“Agree; we will have to adjust our procedures.”

- Dave Dormire


116



“Replace "clear and present danger" with "imminent threat"”



“There is a proposed standard which says that the agency shall not place a person with serious mental

illness in extended restrictive housing. Just what is extended restrictive housing?”

- Art Beeler

“Recommend reword to reflect within seven days of placement. Extended restrictive housing

facilities are better equipped and trained to conduct this evaluation.”


117



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: Written policy, procedure, and practice require that step down programs are offered to inmates

to facilitate the reintegration of the inmate into general population or the community. These programs

shall include, at a minimum, the following:

Pre- screening evaluation

Monthly evaluations using a multidisciplinary approach to determine the inmate’s

compliance with program requirements

Gradually increasing out-of-cell time

Gradually increasing group interaction

Gradually increasing education and programming opportunities

Gradually increasing privileges

A step-down transition compliance review

*See definition for multidisciplinary services team and multidisciplinary treatment teams

**Definition of Step-Down Program: A system of review that requires inmates to meet

certain criteria that prepares an inmate for transition to general population or the

community. These individualized programs involve a coordinated, multidisciplinary

approach that includes medical, mental health, case management, and security

practitioners.

Comment: None.

Protocols: Written policy/procedure, individualized treatment plan, step-down compliance

review form

Process Indicators: Pre-screening evaluation, multidisciplinary classification/case notes,

completed step-down compliance review forms. Logs and completed weekly evaluations

COMMENTS:

“Any discussion regarding time periods for MH intake screenings or other follow-up? Similarly, any

discussion regarding alternatives to RH for SMI? I think what's most important is that regardless of

setting, those that need some form of mental health treatment should have access...with the ultimate goal

being to house an inmate in the least restrictive environment safely possible.”

- Ryan Quirk

- Psychologist


118



“Encourage step-down programs to include a component where towards the end of such programs (and

following careful multidisciplinary team review) inmates have opportunity to be fully out of restraints

(cuffs, waist chains, leg irons, etc.) around each other and possibly staff prior to release to less restrictive

setting (including the community)?”

- Ryan Quirk

- Psychologist


“Proposals 35 and 36 providing for “step down” programs is commendable but we suggest that step

down programs not be so severe as to be unattainable and that provisions requiring a prisoner to return

to the first level for any violation of rules should be avoided. Commentary can address this.”

- Martin Horn


“Add the language "restrictive housing": Written policy, procedure, and practice require that step down

management programs are offered to "RESTRICTIVE HOUSING" inmates to facilitate the reintegration

of the inmate into GP or the community.”

- Andrew Albright



“I recommend the "Step-down Program:" explanation under the new standard is added to the definitions

portion and renamed "RESTRICTIVE HOUSING Step-down Program".”

- Andrew Albright



“Partial Agreement. Pilot site is being initiated. Recommend proposed language state “Written policy,

procedure and practice require that step down programs are offered to offenders who have been on MAX

Custody for 120 days or longer, or specific offenders with identified special needs to facilitate the

reintegration n of offenders into general population or the community”.

Acceptance into step down program should include review of duration offender has been assigned to

MAX Custody, reason for placement on MAX Custody and compatibility with other offenders that may

participate in the program.”


119



“Step down programs should only apply to long term or "extended restrictive housing," and should only

be focused upon preparing inmates to reintegrate into general population - not directly back into the

community which would be contrary to new standard #1 (033). Proposal: add "in extended restrictive

housing" between "inmates" and "to" in first sentence and delete "or the community" in same sentence.”

- Kathy Sligar



“The Nebraska Department of Corrections would like to suggest that this standard only apply to

offenders in extended restrictive housing.”

- Jodi Witte



“Consider a timeframe limit for providing pre-screen evaluation to new admissions inmates. English

language only?”

- Diane Murray Ward


“Suggest this requirement be after a specified period of restrictive housing. This will be resource

intensive process and the benefit for those who are in RH for short periods of time may not justify the

increase resource usage.”

- James M LeBlanc

- Secretary


“After an inmate is released from restrictive housing how long before a step down plan begins?

The proposed standard mentions certain criteria in the programs which will require the development of

programs, need for space and will be labor intensive.”


“These are new standards. We should discuss the feasibility of compliance.”


120



“We do not disagree and are currently working on this.”

- Dave Dormire


“1. Use same definition for "step down program" throughout the manual. Step down definition is not the

same in the definition section and new standards 3 and 4. 2. The step down program should only be for

those in extended restrictive housing. Inmates in restrictive housing (less than 30 days) should not need

all the programs required in new standard #3.”



“Step down units – some specificity should be provided that they may be in a part of the actual restrictive

housing unit or that they can be in a different location. Both can be successful.”

- Art Beeler

“Recommend clarification to specify long term segregation. Current close management

progression follows this standard.”


121



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: Written policy, procedure, and practice require that step down programs are covered in pre-

screening and post-screening evaluations.

Step-down Program: A system of review that requires the inmate to participate and meet certain

requirements that prepare an inmate for transition to general population or the community. These

evidence-based, cognitive programs involve a coordinated, multidisciplinary approach that

includes medical, mental health, case management, and security practitioners.

Comment: None.


Process Indicators: Logs, inmate file

COMMENTS:

“What is the pre-screening and post-screening evaluation? This needs more definition.”

- Susan J. Jones



“Do not agree. Standard needs additional clarifying information.”


“Recommend combining New Standard #3 and #4 at they speak to the same process and compliance

criteria.”

- Kathy Sligar



122



“Combine with New Standard #3.”

- Jodi Witte



“Timeframe and language access issues for consistency with New Standard #3.”

- Diane Murray Ward


“While “pre-screening” appears to be adequately addressed; what is the criteria established for “post-

screening?””

- Tori Raiford



“If post screening can be added to new standard 4, this standard would not be necessary.”

- James M LeBlanc

- Secretary


“These new standards reflect progress in the field which we support. In our experience with the operation

of step-down programs on the ground, however, we find that many of them fail to move prisoners out of

restrictive housing into the general population because they require behavior that is unattainable for

some prisoners, inflict overly harsh penalties for minor misbehaviors, or require long stays in isolated

conditions that lead to mental deterioration which then exacerbates behavior that in turn extends an

individual’s stay in isolated confinement. Some step-down programs appear to create a vicious circle for

certain prisoners that results in months or even years in restrictive housing. We have found that one of

the greatest problems with step-down programs is that they fail to accommodate the individual needs of

prisoners with disabilities.

The ADA requires that prisoners who qualify for reasonable accommodations receive access to programs,

like step-down programs, if such programs are available to non-disabled prisoners. To deny disabled

prisoners access to such programs constitutes discrimination under the ADA. 42 U.S.C. § 12132.(cont’d)

123



As public entities, prisoners must provide reasonable modifications to provide disabled prisoners with

equal access to programs, 28 C.F.R. § 35.130(b)(7), and may not adopt policies that screen out prisoners

with disabilities from these programs, 28 C.F.R. § 35.130(b)(8).

We suggest that the commentary reflect that step-down programs need to be calibrated for different

populations and will often need to be individually-based in order to return a prisoner to general

population safely, effectively, and expeditiously.”

- Jamelia Morgan




“Agree.”

- Dave Dormire


“Recommend clarification to specify long term segregation. Current close management progression can

be adapted to address this standard.”


124



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: When Females are housed in an institution, female inmates determined to be pregnant shall not

be housed in Restrictive Housing.

Comment: None.


Process Indicators: Interviews with inmates/staff, Observation and Admission in housing

COMMENTS:

“While pregnant offenders must be provided appropriate prenatal care and generally housed in a unit

based on the individual's medical situation. An absolute prohibition against placement in restrictive

housing seems unrealistic and not in the best interest of the offender or the child. The individuals

circumstance must be considered.”

- John D. Rees, CCE

“Agree. This situation has not occurred to our knowledge, however if it does alternatives would be

identified.”


“Recommend revising Proposal to read: "When females are housed in an institution, female inmates

determined to be pregnant shall not be housed within disciplinary detention or extended restrictive

housing.”

- Kathy Sligar



125



“The Nebraska Department of Corrections would like to suggest adding "unless they pose a clear and

present danger to staff and/or other inmates which can be documented and requires agency administrator

approval".”

- Jodi Witte



“New Standard #5 - prohibits the housing of pregnant inmates in adseg. Not sure of the need for this

prohibition so long as the inmate is receiving all appropriate medical attention.”



“The proposed standard eliminates the utilization of restricted housing for pregnant inmates regardless

of their individualized medical needs assessment and independent of classification factors, both static and

dynamic, which may call for restricted housing assignment for direct safety reasons for which no

alternative exists. If there is a legitimate medical reason for placement in a medical bed, then such

alternatives exist in current correctional environments for periods of time determined by medical staff. I

don’t think that we can suggest that pregnancy is a medical condition that absolutely precludes restrictive

housing when the individual is clearly dangerous and has no complications that call for in-patient or

other medical housing. Medical staff are capable of managing normal pregnancies on an outpatient

basis in restrictive housing assignments.

We also have to consider, when evaluating a standard with an absolute restriction, that there may in fact

be circumstances that warrant exceptions. Louisiana has, for example, two females on death row. Had

they been pregnant upon intake, the decision to house them under death row requirements would not have

been mitigated. Had they needed emergency medical care for themselves, or their unborn child, it would

have been provided in an environment determined by medical staff in consultation with the warden.

There are other considerations that must be made relative to inmate behaviors in general population that

clearly threaten the safety of the baby, or when the inmate has a demonstrated history of child abuse.”

- Richard L Stalder


“Query : Does mental status supersede pregnancy status across the board?”

- Diane Murray Ward


126



“Disagree with standard as written, there needs to be an exception in extreme cases where staff or inmate

safety is at risk.”

- Kent Peck

“Suggest adding language that says "with healthcare authority approval" or "unless they present a clear

and present danger to self, staff, and/or other inmates. In such instances the placement is documented and

reviewed within xx hours." A blanket exemption does not allow management of offenders who may be

acting out while pregnant.”

- James M LeBlanc

- Secretary


“The standard should state that under normal circumstances pregnant inmates will not be placed in

restrictive housing. However, in the case of self-harm, harm to others or harm to the unborn child the

pregnant offender may be placed in restrictive housing. This shall be documented in writing for the

justification and the inmate shall be released when there is no longer a threat of her harming herself, her

child or others.”

- John Dunn

“May be third trimester and / or high risk pregnancies.”

- Raman Singh

“We strongly support this new standard and advocate that it be designated as Mandatory.”

- Jamelia Morgan


“The proposed additions of New Standards #5, #6, and #7 seek to prohibit assigning inmates to

restrictive housing if they are pregnant women (#5), are under the age of 18 (#6), and if the assignment

was based purely on gender identity (#7). In all three instances, the ABA Standards are silent, but the

proposed additions represent laudable steps forward in signaling the ACA Standards’ commitment to

reducing reliance on restrictive housing.”

- Bruce Nicholson

127



“The New Standard proposal requires that if a female inmate is determined to be pregnant she will not be

housed in Restrictive Housing. It needs to be discussed what if it is necessary? What is the risk?”




“We believe this standard should be revised to state “The agency shall not place female inmates

determined to be pregnant in extended restrictive housing unless they present a clear and present danger

to themselves, staff, or other offenders."”

- Dave Dormire


“Recommend objecting to this standard in context. There is no alternative suggested or exemption for the

safety and security of staff and inmates.”


128



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: Confinement of Juveniles under the age of 18 years of age in Restrictive Housing is prohibited.

Comment: None.


Process Indicators: Interviews with inmates/staff, Observation and Admission in housing

COMMENTS:

“While I might generally support this standard for the Juvenile Standards. I believe it is inappropriate for

persons under the age of 18 who have been tried as an adult and housed in an adult facility. Once the

courts have determined that an adolescent is an adult for legal purposes then the adult standards should

apply.”

- John D. Rees, CCE

“Prohibiting confinement of juveniles (under 18) in Restrictive Housing is not recommended. The

proposal is too broad and does not adequately protect correctional workers from this (often more)

dangerous, albeit small, segment of incarcerated juveniles. As juvenile populations have decreased in

several jurisdictions, it is generally only the most unmanageable and dangerous youth who end up

spending time in a secure facility.”

- Jennifer French


“At times offenders 18 years or younger that commit violent acts are housed in restrictive housing due the

risk they present to staff and other offenders.”


129



“Recommend revising Proposal to read: "Confinement of juveniles under the age of 18 years of age in

extended restrictive housing is prohibited.”

- Kathy Sligar



“Federal (OJJDP) regulations prohibit the conferment of juveniles with adult inmates which would make

this proposed standard not applicable to an adult facility under ACI standards. If the intent of ACA is to

prohibit the placement of youthful offenders (adjudicated as adults) who are under 18 in restrictive

housing, I would recommend the following language. “Youthful offenders who are under 18 will not be

placed in restrictive housing unless it is necessary to protect the youthful offender or they pose a clear

and present danger to staff and other inmates.” The process indicator would be “disciplinary reports for

assaultive behavior, threats of harm towards staff or intelligence reports indicating a significant

involvement in security threat group activity".”

- Jodi Witte



“The standard eliminates the use of restricted housing for anyone younger than 18. The goal is to remove

adolescents from the restrictive housing environment. The difficulty is in establishing a distinct age as

being determinant in such placement. There are jurisdictions where the age of adult criminal

responsibility is younger than 18. To say that a 17 year old, legally sentenced as an adult for a criminal

offense, cannot be placed in cell housing for 22 hours a day or more independent of the nature of his

dangerous actions or classification profile, is not always realistic.

a significant factor in review of this proposal has to be the determination of “adolescence” and

attendant differential sanctioning based on it. The standard suggests the age of 18. Various jurisdictions

differ for what they consider to be legitimate reasons. Dr. Barry Glick, noted child psychologist, states in

his book “no time to play”, “…while adolescence may be defined (by) age, we believe that adolescence is

defined by a variety of domains and stages, through which an individual grows and develops”. We

should follow the policy of the American Correctional Association that relates to the housing of very

youthful offenders in adult facilities in this regard and not make a simple blanket statement relative to

having attained the age of 18.”

- Richard L Stalder


130



“Disagree with standard as written, there needs to be an exception in extreme cases where staff or

inmates are at risk.”

- Kent Peck

“In that state of Virginia, juveniles can be adjudicated as an adult; therefore we feature a specialized unit

separate from other populations for juveniles exclusively. In our experience, these offenders often possess

the actions of extremely violent behavior posing a high risk towards staff and other offenders.”

- Tori Raiford



“This does not ensure safety and security of our prisons. This standard must allow for such housing when

a safety or security risk exists, even if it does so with some form of review and approval (see comments on

new 5).”

- James M LeBlanc

- Secretary


“We strongly support this new standard and advocate that it be designated as Mandatory. We also

suggest that ACA consider extending this protection to 18-21 year-olds in line with research

demonstrating that the human brain is still in the process of developing during these years so that the

potential for psychological harm from isolation is greater for this age group.

Such considerations have informed new programs at Rikers Island that plan to exclude 18-21 year-olds

from isolation housing. See N.Y.C. Bd. of Corr., Notice of Adoption of Rules, §§1-16, 1-17 (January 13,

2015), available at http://www.nyc.gov/html/boc/downloads/pdf/BOCRules Amendment_20150113.pdf;

see also Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, THE ATLANTIC (Jun. 30,

2014), http://www.theatlantic.com/health/archive /2014/06/how-solitary-confinement-hurts-the-teenage-

brain/373002/.”

- Jamelia Morgan


131








- Bruce Nicholson

“It is not reasonable to say juvenile offenders cannot be placed in restrictive housing as they present

behaviors that make them dangerous to themselves, staff, and other offenders.”

- Dave Dormire


“Recommend objecting to this standard in context. There is no alternative suggested or exemption for the

safety and security of staff and inmates.”


132



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Proposal: On the basis of Gender Identity alone, no one shall be place in Restrictive Housing.

Comment: None.


Process Indicators: Interviews with inmates/staff, Observation and Admission in

housing

COMMENTS:



“The proposed standard, as written, would be difficult to consistently interpret and apply on a

national basis. While it states that the pure application of gender identity in the classification

process could not result in restrictive housing assignments, it is not clear as to whether or not

subsequent related adjustment issues that involve inmate safety could be utilized in housing

determinations that involve restrictive housing. It is also silent on the definition of gender

identity as it applies to the standard.”

- Richard L Stalder


“We strongly support this new standard and advocate that it be designated as Mandatory.”

- Jamelia Morgan


133








- Bruce Nicholson

“Agree.”

- Dave Dormire


“Replace proposed standard with "No one shall be place in Restrictive Housing based solely on Gender

Identity."”



“Concur.”


134


Performance-Based Standards for Adult Local

Detention Facilities, 4th

Edition (2004)

135


Manual: Adult Local Detention Facilities

Edition: Fourth

Standard: 4-ALDF-2A-27


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2013): Prior to being placed in the general population, each inmate

is provided with an orientation to the facility, which includes at a minimum:

• written information describing facility rules and sanctions

• explanation of mail and visiting procedures

• explanation of transportation options for visitors

• explanation of grievance procedures

• explanation of all fees, charges, or copayments that may apply

• description of services, programs, and eligibility requirements

• information on how to access medical care

• identification of available pretrial release options

This information is provided to inmates in a written and/or electronic format. If the inmate

handbook is provided electronically, inmates in segregation are provided the information in a

written format so that their access to the information is not impeded by their custody status. The

handbook is translated into those languages spoken by significant numbers of inmates.

Comment: The use of electronic kiosks is allowed as a means of providing the inmate handbook.

Agencies using such kiosks should implement strategies to allow access to this information by

general population inmates without interference by facility staff without a valid security-related

reason. Inmates who are unable to read and write should be assisted through case management

services provided by the facility.

Protocols: Written policy and procedure. Orientation information and process. Inmate handbook.

Process Indicators: Observation. Intake records. Inmate Interviews.

Proposal: Prior to being placed in the general population, each inmate is provided with an orientation to

the facility, which includes at a minimum:

• facility rules and sanctions

• mail and visiting procedures

• transportation options for visitors

• grievance procedures

• all fees, charges, or copayments that may apply

• services, programs, and eligibility requirements

• how to access medical care and mental health care

• available pretrial release options

136


This information is provided to inmates in a printed and/or electronic format. If the inmate

handbook is provided electronically, inmates in restrictive housing are provided the information

in a printed format so that their access to the information is not impeded by their custody status.

The handbook is translated into those languages spoken by significant numbers of inmates.

Comment: The use of electronic kiosks is allowed as a means of providing the inmate handbook.

Agencies using such kiosks should implement strategies to allow access to this information by

general population inmates without interference by facility staff without a valid security-related

reason. Inmates who are unable to read and write should be assisted through case management

services provided by the facility.

Protocols: Written policy and procedure. Orientation information and process. Inmate handbook.

Process Indicators: Observation. Inmate Interviews. Completed intake records.

COMMENTS:

“Is this information provided in other languages?”

- Diane Murray Ward


“If the prisoner is blind, or has a visual impairment recorded by the institution or self-reported by the

prisoner, orientation materials shall be presented in Braille, large print, audio format, or through other

assistive devices such that these materials are provided in a format accessible to the prisoner.”

- Jamelia Morgan


“Believe there needs to be something talking about the developmentally disabled.”

- Art Beeler

137



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: The facility administrator or designee can order immediate segregation when it is

necessary to protect the inmate or others. The action is reviewed within 72 hours by the appropriate

authority.

Comment: None.


Process Indicators: Documentation of review within 72 hours. Facility records. Inmate records.

Proposal: The facility administrator or designee can order immediate placement in restrictive housing

when it is necessary to protect the inmate or others. The action will be approved, denied, or modified

within 24 hours by an appropriate and higher authority who is not involved in the initial placement.

Comment: None.


Process Indicators: Documentation of review within 24 hours. Facility records. Inmate records

COMMENTS:

“I am concerned that this change does not provide coverage for weekends. I suspect that to meet this new

24 hour requirement the decision will be pushed down to a lower level of administration that may not

provide the same level of consideration that the change intends. Recommend leaving the ability for

reconsideration of 72 hours over weekends.”

- Jeffrey Newton

- Superintendent

- Riverside Regional Jail Authority

“Recommend removing "higher authority" in the proposed standard and retain "appropriate authority".

Leave it up to the agency to decide who is the appropriate authority. For example a shift sergeant acting

as designee may order placement to restrictive housing and the review is conducted by the Classification

Sergeant, which is of the same ranking.”

- Sandra Guajardo

- Accreditation Coordinator

- Manatee County Sheriff's Office

138



“Please define “higher authority” and what qualifies as higher authority - Major, Captain, or Lieutenant?

What is the intent of this standard, why change from 72 hours to 24 hours? How do we address weekends

and/or holidays when a ‘higher authority’ is off-site? Would an email be appropriate denying or

approving the placement? Can an equivalent rank act as a higher authority on a different “not involved”

shift?”

- Jimmie Barret

139



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: (MANDATORY): When an inmate is transferred to segregation, health care

personnel are informed immediately and provide assessment and review as indicated by the protocols

established by the health authority. Unless medical attention is needed more frequently, each inmate in

segregation receives a daily visit from a health care provider. The presence of a health care provider in

segregation is announced and recorded. The health authority determines the frequency of physician visits

to segregation units.

Comment: Health care provider’s visits are intended to be screening rounds and are not meant to

be clinical encounters. The visit ensures that inmates have access to the health care system. The

health care provider determines the appropriate setting for further medical attention or

examination and may request an inmate’s removal from a cell or housing area to a clinical

environment.


Process Indicators: Health records. Segregation logs. Duty assignment roster for health care

providers. Observation. Interviews.

Proposal: (MANDATORY): When an inmate is transferred to restrictive housing, health care personnel

are informed immediately and provide assessment and review of medical and mental health risks factors

as indicated by the protocols established by the health authority. Unless medical attention is needed more

frequently, each inmate in restrictive housing receives a daily visit from a qualified health care provider.

The presence of a health care provider in restrictive housing is announced and recorded. The health

authority determines the frequency of physician visits to restrictive housing units.

Comment: Health care provider’s visits are intended to be screening rounds and are not meant to

be clinical encounters. The visit ensures that inmates have access to the health care system. The

health care provider determines the appropriate setting for further medical attention or

examination and may request an inmate’s removal from a cell or housing area to a clinical

environment.


Process Indicators: Health records. Restrictive Housing logs. Duty assignment roster for health

care providers. Observation. Interviews.

140


COMMENTS:

“The APA also recommends rounds by mental health staff for all inmates in restrictive housing that

should are at least on a weekly basis. The frequency of mental health rounds will depend on the size of the

unit and the usual duration of stay.”




“Define screen rounds versus clinical encounters.”

- Diane Murray Ward


“Funding Required - Additional staffing for medical and mental health staff.”

- Christy Guyovich

- Los Angeles County Sheriff’s Department - Los Angeles, CA

141



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: The status of inmates in administrative segregation and protective custody is

reviewed every seven days for the first two months and at least every 30 days thereafter.

Comment: None.

Protocols: Written policy and procedure. Review process.

Process Indicators: Documentation of review process and outcomes.

Proposal: The purpose for placement of inmates in restrictive housing is reviewed by a supervisor every

seven days for the first 60 days and at least every 30 days thereafter.

Comment: None.



COMMENTS:

“The new proposal indicates a supervisor will review every 7 days. Can it state supervisor or designee?”

- Quessie Parks


- City of Atlanta Department of Corrections

“I would like to recommend adding in the proposal language which states the supervisor shall be the

person responsible for Classification for the facility.”

- Elias Alden Diggins

“Please define “supervisor”. ACA does not currently define supervisor. For example, can a non-sworn

Inmate Service Counselor II be considered a supervisor as they supervise other Inmate Service

Counselors or does it have to be a sworn officer?”

- Jimmie Barret

142

Restrictive Housing Committee-043 (continued)


“4-ALDF-2A-48 - requires review of purpose for placement of inmates in restrictive housing every seven

(7) days for the first sixty (60) days. This seems unworkable for all restrictive housing. There are some

situations where this frequency of review is appropriate. However, as to Adseg and MCU it seems

unnecessary and impractical.”



“"medical or uniform" supervisor?”

- Diane Murray Ward


“Funding Required - Additional staffing to meet time frames for reviews and documentation.”

- Christy Guyovich


“Where is the mental health review?”

- Art Beeler

143



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: There is a review process used to release an inmate from administrative segregation

or protective custody.

Comment: None.



Proposal: There is a review process used to transfer an inmate from restrictive housing.

Comment: None.

Protocols: Written policy and procedure. Review process

Process Indicators: Documentation of review process and outcomes

COMMENTS:

“Recommend changing "transfer" to "relocate". Transfer sounds like the inmate is being moved to

another facility.”

- Sandra Guajardo



144



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Segregation housing units provide living conditions that approximate those of the

general inmate population. All exceptions are clearly documented. Segregation cells/rooms permit the

inmates assigned to them to converse with and be observed by staff members. Cells/rooms used for

segregation are single occupancy and encompass at least 70 square feet of floor area of which 35 square

feet is unencumbered.

Comment: None.

Protocols: Written policy and procedure. Facility plans and specifications.

Process Indicators: Observation. Measurement. Inmate interviews.

Proposal: Restrictive housing units provide living conditions that approximate those of the general

inmate population. All exceptions are clearly documented. Restrictive housing cells/rooms permit the

inmates assigned to them to converse with and be observed by staff members. All cells/rooms in

restrictive housing provide a minimum of 70 square feet, and shall provide 35 square feet of

unencumbered space for the first occupant and 25 square feet of unencumbered space for each additional

occupant.

Comment: None.

Protocols: Written policy and procedure. Restrictive Housing log book. Unit schedule

Process Indicators: Log book entries. Documentation of exceptions

COMMENTS:

“Provide schematic with multiple inhabitants.”

- Diane Murray Ward


“Structural changes would be costly to LA County to meet the standard cell size.”

- Christy Guyovich


145



“4-4141 affirms the requirement that cells/rooms in restrictive housing must provide a minimum of 80

square feet, in compliance with ABA Standard 23-3.8(e). However, 4-ALDF-2A-51 of the proposed jail

accreditation standards requires only that a restrictive housing cell be a minimum of 70 square feet,

which violates 23-3.8(e).

Commentary to Subdivision (e) of the ABA Standards also stipulates that no more than one person should

be housed within a segregation cell, which both 4-4141 and 4-ALDF-2A-51 reject in providing for 25

square feet of unencumbered space for each additional occupant in a restrictive housing cell.”

- Bruce Nicholson

146



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised 2011): Written policy, procedure, and practice require that all special

management inmates are personally observed by a correctional officer twice per hour, but no more than

40 minutes apart, on an irregular schedule. Inmates who are violent or mentally disordered or who

demonstrate unusual or bizarre behavior receive more frequent observation; suicidal inmates are under

continuing or continuous observation.

Comment: None.

Protocols: Written policy and procedure. Staffing plan. Log format.

Process Indicators: Facility records and logs. Documentation of cell checks.

Proposal: (Revised 2015): Written policy, procedure, and practice require that all special management

inmates are personally observed by a correctional officer twice per hour, but no more than 40 minutes

apart, on an irregular schedule. Inmates who are violent or mentally disordered or who demonstrate

unusual or bizarre behavior receive more frequent observation; self-harm and suicidal inmates are under

continuous observation. Identification of the type of observation (minimal to constant) is determined and

documented on a log by a qualified mental health professional during regular hours or medical staff after

hours.

Comment: An inmate “companion” program for use in the observation process is acceptable

provided that the inmate “companion” is trained and monitored.

Protocols: Written policy and procedure. Staffing plan. Log format.

Process Indicators: Facility records and logs. Documentation of cell checks.

COMMENTS:

“I am concerned that this change does not provide coverage for weekends. I suspect that to meet this new

24 hour requirement the decision will be pushed down to a lower level of administration that may not

provide the same level of consideration that the change intends. Recommend leaving the ability for

reconsideration of 72 hours over weekends.”

- Jeffery Newton

- Superintendent


147



“Suicidal inmates, with rare exceptions, should not be in a restricted housing setting unless they are

waiting for an impending transfer to an appropriate healthcare setting.

The use of inmate “companions” for observation of suicidal inmates is very problematic and not

recommended by the APA.”




“Please define, “continuous observation”. Does this mean one on one observation? If so, agencies will

require additional staffing which is extremely difficult in this economy. Can one officer observe more

than one at a time if architectural design permits? Can a camera be used or doe the officer need to be

physically present. We need clarification on the definition, “medical staff”. Does this mean, RN, LPN,

CNA, and Doctor? What is the delineation between minimal to constant observations ? What is the

delineation between minimal to constant observations? How is it determined by medical staff? What is the

intent of the proposed change, since it is similar to the existing standard?”

- Jimmie Barret

“Irregular tours as conducted by suicide prevention trained detainees (New York City 's Observation

Aide Program).”

- Diane Murray Ward


“Funding Required - Additional staffing to conduct continuous observation.”

- Christy Guyovich


“The proposed revision to 4-ALDF-2A-52 provides that inmates under “special management” must be

observed “twice per hour, but no more than 40 minutes apart.” However, ABA Standard 23-5.4(d)

recommends that “[a]t a minimum, prisoners presenting a serious risk of suicide should be housed within

sight of staff and observed by staff, face-to-face, at irregular intervals of no more than 15 minutes.

Prisoners currently threatening or attempting suicide should be under continuous staff observation…”

(emphasis added). The Commentary to Subdivision (d) notes the increased chance of harm to an inmate

from extended periods of unsupervised isolation and that both the American Public Health Association

Standards (V.E.4) and the National Commission on Correctional Health Care Standards (G-05)

recommend continuous observation.”

- Bruce Nicholson

148



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised January 2005): Inmates in segregation receive daily visits from the facility

administrator or designee, members of the program staff, on request.

Comment: None.

Protocols: Written policy and procedure. Log format.

Process Indicators: Documentation of administrator/designee visits and health care visits.

Inmate interviews. Completed logs.

Proposal: Inmates in restrictive housing receive daily visits from the facility administrator or designee

and weekly visits from members of the program staff.

Comment: None.


Process Indicators: Documentation of administrator/designee visits and health care visits.

Inmate interviews. Completed logs.

COMMENTS:

“Recommend leaving "members of the program staff, on request." There doesn't seem to be a purpose for

a weekly visit from members of the program staff when the facility administrator or designee is

conducting daily visits, in which inmates can request programs.”

- Sandra Guajardo



“This revision will require daily restrictive housing visits by program staff where previously it was upon

request.”


149



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2007): Staff assigned to work directly with inmates in special

management units are selected based on criteria that includes:

- completion of probationary period

- experience

- suitability for this population

Staff is closely supervised and their performance is documented at least annually. There are

provisions for rotation to other duties.

Comment: None.

Protocols: Written policy and procedure. Staff schedule.

Process Indicators: Documentation of supervision and rotation of staff. Inmate interviews. Staff

interviews.

Proposal: Staff assigned, on a regular basis, to work directly with inmates in restrictive housing units are

selected based on criteria that includes:

- completion of probationary period

- experience

- suitability for this population

Specialized training

Staff is closely supervised and their performance is documented at least annually. There are

provisions for rotation to other duties.

Comment: None.

Protocols: Written policy and procedure. Staff roster/schedule

Process Indicators: Performance reviews. Documentation of staff rotation

150


COMMENTS:

“The current and proposed language speaks to officers completion of their probation prior to assignment

to restrictive housing. Proposed revision. "...1) Completion of probationary period, or 6-months as a

correctional officer..." The District of Columbia Personnel Regulations mandates Corrections Officers

satisfy 18-months probation. Completion of the probation restricts qualified officers and may impact

staffing of those units.”

- Gloria Robertson, CCN

- Licensed Practical Nurse

- D.C. Department of Corrections

“Recommend removing the requirement of specialized training. All corrections deputies attend an

academy with a set curriculum on dealing with inmates in restrictive housing. After successful completion,

they are qualified to work in all areas of corrections.”

- Sandra Guajardo



“Who has access to this log noting inmate behavior? Remind/train/reinforce everyone of HIPAA

regulations.”

- Diane Murray Ward


“The proposed revisions to 4-4259 and to 4-ALDF-2A-54 formalize the training and requirements of staff

entrusted to work in the restrictive housing unit by requiring “specialized training.” In both instances,

the additions make the respective standards consistent with the requirements of ABA Standards 23-10.3(b)

and (c).”

- Bruce Nicholson

“This revision added in specialized training for those assigned to restrictive housing. This may need

further discussion.”


151



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised January 2007): Staff operating special management units maintain a

permanent log that contains at a minimum the following information for each inmate admitted to

segregation:

- name

- number

- housing location

- date admitted

- type of infraction or reason for admission

- tentative release date

- special medical or psychiatric problems or needs

Officials who inspect the units, counsel the inmate on his or her behavior, and all releases also

use the log to record all visits.

Comment: None.


Process Indicators: Completed log. Inmate records.

Proposal: Staff operating restrictive housing units maintain a permanent log that contains at a minimum

the following information for each inmate admitted to restrictive housing:

- name

- number

- housing location

- date admitted

- type of infraction or reason for admission

- tentative/actual transfer date

- Special medical or mental health needs.- Inmate behavior

All visitors to the unit will be documented on a permanent log.

Comment: None.

Protocols: Written policy and procedure. Log format

Process Indicators: Completed log. Inmate records.

COMMENTS: None.

152



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: All inmates in special management units are provided prescribed medication,

clothing that is not degrading and access to basic personal items for use in their cells unless there is

imminent danger that an inmate or any other inmate(s) will destroy an item or induce self-injury.

Comment: None.


Process Indicators: Inmate records. Segregation log. Inmate interviews.

Proposal: Written policy, procedure, and practice provide that all inmates in restrictive housing are

provided medication as prescribed.

Comment: None.


Process Indicators: Inmate records. Restrictive housing log. Inmate interviews.

COMMENTS: None.

153



Edition: Fourth

Standard: New Standard 4-ALDF-2A-56-1


Facility Size: N/A

Accredited: N/A


Proposal:

4-ALDF-2A-56-1: Written policy, procedure, and practice provide that all inmates in restrictive

housing are provided suitable clothing, and access to basic personal items for use in their cells

unless there is imminent danger that an inmate or any other inmate(s) will destroy an item or

induce self-injury.

Comment: None.


Process Indicators: Inmate records. Restrictive housing log. Inmate interviews.

COMMENTS:

“This is a new standard that states inmates are provided with suitable clothing with no mention of

jumpsuits.”


154



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units have the opportunity to shave and shower at

least three times per week. Inmates in special management units receive laundry, barbering, and hair care

services and are issued and exchange clothing, bedding, and linen on the same basis as inmates in the

general population. Exceptions are permitted only when determined to be necessary. Any exception is

recorded in the unit log and justified in writing.

Comment: None.

Protocols: Written policy and procedure. Segregation activity/service schedule.

Process Indicators: Segregation log. Documentation of exceptions.

Proposal: Inmates in restrictive housing units have the opportunity to shave and shower at least three

times per week. Inmates in restrictive housing units receive laundry and hair care services and are issued

and exchange clothing, bedding, and linen on the same basis as inmates in the general population.

Exceptions are permitted only when determined to be necessary. Any exception is recorded in the unit log

and justified in writing.

Comment: None.

Protocols: Written policy and procedure. Restrictive housing activity/service schedule.

Process Indicators: Restrictive Housing log. Documentation of exceptions.

COMMENTS:

“Prisoners with medical impairments, mobility impairments, visual impairments, or other disability-

related impairments must be provided with reasonable accommodations to ensure them proper and safe

access to shower facilities. Such reasonable accommodations include, but are not limited to, shower

chairs and showers with built-in handle bars.”

- Jamelia Morgan


155



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: When an inmate in segregation is deprived of any usual authorized items or activity,

a report of the action is made and forwarded to the facility administrator.

Comment: None.

Protocols: Written policy and procedure. Format for report.

Process Indicators: Documentation of report of actions to administrator. Inmate interviews.

Proposal: When an inmate in restrictive housing is deprived of any usual authorized items or activity, a

report of the action is made and forwarded to the facility administrator or designee.

Comment: None.


Process Indicators: Completed report. Documentation of report of actions to administrator.

Inmate interviews

COMMENTS:

“When a prisoner in restrictive housing is deprived of any usual authorized items or activity, including

any reasonable accommodation or assistive device, a report of the action shall be made and forwarded to

the facility administrator or designee for review and approval within 24 hours. A responsible medical

authority or designated ADA coordinator must be consulted as part of this review.”

- Jamelia Morgan


156



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units can write and receive letters on the same basis

as inmates in the general population.

Comment: None.


Process Indicators: Segregation log. Observation. Inmate Interviews.

Proposal: Inmates in restrictive housing units can write and receive letters on the same basis as inmates

in the general population.

Comment: None.


Process Indicators: Restrictive Housing log. Observation. Inmate Interviews.

COMMENTS: None.

157



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units have opportunities for visitation unless there

are substantial reasons for withholding such privileges. All denials for visitation are documented.

Comment: None.


Process Indicators: Staff and inmate interviews. Segregation log.

Proposal: Inmates in restrictive housing units have opportunities for visitation unless there are substantial

reasons for withholding such privileges. All denials for visitation are documented.

Comment: None.


Process Indicators: Staff and inmate interviews. Restrictive Housing log. Documentation of

denials.

COMMENTS: None.

158



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units have access to legal materials.

Comment: None.



Proposal: Inmates in restrictive housing units have access to legal materials.

Comment: None.


Process Indicators: Staff and inmate interviews. Restrictive Housing log.

COMMENTS:

“How about copying services and legal forms?”

- Art Beeler

159



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units have access to reading materials.

Comment: None.



Proposal: Inmates in restrictive housing units have access to reading materials.

Comment: None.



COMMENTS: None.

160



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in special management units receive a minimum of one hour of exercise per

day outside their cells, five days per week, unless security or safety considerations dictate otherwise.

Comment: None.



Proposal: Inmates in restrictive housing units are offered a minimum of one hour of exercise five days a

week outside their cells, unless security or safety considerations dictate otherwise.

Comment: None.


Process Indicators: Staff and inmate interviews. Restrictive Housing log. Unit schedule.

COMMENTS:

“Written policy, procedure, and practice provide that inmates in restrictive housing receive a minimum of

two hours of exercise outside their cells, five days per week, unless security or safety considerations

dictate otherwise.”




“Additional yard space would be required to accommodate the inmate population in LA County.

Structural changes - funding required.”

- Christy Guyovich


161



“Funding Required - Additional staffing to accommodate escorts of inmates to yard.”

- Christy Guyovich


“The proposed revision to 4-ALDF-2A-64 reaffirms the standard’s existing commitment to providing one

hour of exercise five days per week outside of the cell to inmates assigned to restrictive housing. This

violates the requirement that “[e]ach prisoner, including those in segregated housing, should be offered

the opportunity for at least one hour per day of exercise, in the open air if the weather permits” found in

ABA Standard 23-3.6(b).

Courts have long recognized the centrality of exercise to inmates’ well-being (See, e.g., Davenport v.

DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (five hours exercise per week required for prisoners in

segregation); Toussaint v. McCarthy, 597 F. Supp. 1388, 1402, 1412 (N.D. Cal.1984) (eight hours

exercise per week required for prisoners in segregation), aff’d in part and rev’d in part on other grounds,

801 F.2d 1080 (9th Cir. 1986), and some courts have even gone so far as to require that this exercise be

administered outdoors. See, e.g., Fogle v. Pierson, 435 F.3d 1252, 1259-60 (10th Cir. 2006) (noting

“substantial agreement” in cases that “regular outdoor exercise is extremely important to the

psychological and physical well being of inmates”); Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th

Cir. 1984); Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979).

Therefore, despite the reduced staffing levels that are to be expected during weekends, it is essential for

inmates’ well-being that they be provided at minimum an hour of exercise, preferably outdoors, every day

of the week.”

- Bruce Nicholson

162



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in disciplinary detention are allowed limited telephone privileges consisting

of telephone calls related specifically to access to the judicial process and family emergencies as

determined by the facility administrator or designee.

Comment: None.



Proposal: Inmates in disciplinary detention are allowed limited telephone privileges consisting of

telephone calls related specifically to access to the judicial process and family emergencies as determined

by the facility administrator or designee.

Comment: None.



COMMENTS: None.

163



Edition: Fourth



Facility Size: N/A

Accredited: N/A


Existing Standard: Inmates in administrative segregation and protective custody have access to

programs and services that include, but are not limited to the following:

- educational services

- commissary services

- library services

- social services

- counseling services

- religious guidance

- recreational programs

- telephone access

Comment: None.



Proposal: Inmates in restrictive housing, other than those in disciplinary detention, have access to

programs and services that include, but are not limited to the following:

- educational services

- commissary services

- library services

- social services

- counseling services

- religious guidance

- recreational programs

- telephone access

Medical and behavioral health services

Comment: None.



164


COMMENTS:

“The new language excludes Disciplinary Detention from services. One of the services added to the

proposed revision was "Medical and Behavioral Health Services". This appears to exclude disciplinary

detention offenders from medical and mental health services. Maybe Disciplinary Detention should be

removed from this standard, possibly spelled out in 2A-65.”

- Gloria Robertson, CCN

- Licensed Practical Nurse

- D.C. Department of Corrections

“Funding Required - Additional staffing to conduct educational programming and escorts.”

- Christy Guyovich


165



Edition: Fourth

Standard: 4-ALDF-5C-04


Facility Size: N/A

Accredited: N/A


Existing Standard: (Revised August 2013): Segregation units have either outdoor uncovered or outdoor

covered exercise areas. The minimum space requirements for outdoor exercise areas for segregation units

are as follows:

Group yard modules: 330-square feet of unencumbered space can accommodate two


inmate may use the exercise area simultaneously. (Formula: for each 150 square feet of

unencumbered space exceeding the base requirement of 180 square feet for the first



Individual yard modules: 180 square feet of unencumbered space.

In cases where cover is not provided to mitigate the inclement weather, appropriate weather-

related equipment and attire should be made available to the inmates who desire to take

advantage of their authorized exercise time.

Comment: None.

Protocols: Written policy and procedure. Facility plans/specifications. Schedules.

Process Indicators: Observation. Measurement. Facility logs and activity records.

Proposal: Restrictive housing units have either outdoor uncovered or outdoor covered exercise areas. The

minimum space requirements for outdoor exercise areas for restrictive housing units are as follows:

Group yard modules: 330-square feet of unencumbered space can accommodate two


inmate may use the exercise area simultaneously. (Formula: for each 150 square feet of

unencumbered space exceeding the base requirement of 180 square feet for the first



Individual yard modules: 180 square feet of unencumbered space.

In cases where cover is not provided to mitigate the inclement weather, appropriate weather-

related equipment and attire should be made available to the inmates who desire to take

advantage of their authorized exercise time.

Comment: None.

Protocols: Written policy and procedure. Facility plans/specifications. Schedules.

166


Process Indicators: Observation. Measurement. Facility logs and activity records.

COMMENTS:

“Additional yard space would be required to accommodate the inmate population in LA County.

Structural changes - funding required.”

- Christy Guyovich


167



Edition: Fourth

Standard: New Standard


Facility Size: N/A

Accredited: N/A


Proposal:

Step-down programs for release from restrictive housing

4-ALDF-XX-XX: Written policy, procedure, and practice require that step down programs are offered to

inmates to facilitate the reintegration of the inmate into general population or the community. These

programs shall include, at a minimum, the following:

Weekly evaluations using a multidisciplinary approach to determine the inmate’s compliance

with program requirements

Gradually increasing out-of-cell time

Gradually increasing group interaction

Gradually increasing education and programming opportunities

Gradually increasing privileges

Step- down compliance review

Protocol: Policy and Procedure

Process indicators: Step-down compliance review form. Evaluations form. Restrictive Housing logs.

COMMENTS:

“While I agree with and support this standard in concept. It may prove to be unrealistic for the hundreds

of smaller jails across the country. While I don't want to reduce the strength of standards for local

detention standards but at the same time I don't want to discourage smaller local facilities from

attempting to achieve accreditation”

- John D. Rees, CCE

“We need clarification on entire standard – what exactly does this mean? An example needs to be

provided in order to provide meaningful comment. For example, define step down programs and

multidisciplinary approach. What goes into determining compliance? How is this objectively measured?

What if an inmate refused increasing programs or wishes to cease group interactions?”

- Jimmie Barret

168



“Step down program - release to the community. Majority of the inmates housed within LA County are

pre-sentenced and are released from Court without prior knowledge. There will be several circumstances

where LA County would not be able to meet this standard based, on short sentences, or pre-sentenced

inmates. Additional staffing (sworn, medical, mental health) required. Funding for IT program to track,

based on population.”

- Christy Guyovich






behavior.





- Bruce Nicholson

169



Edition: Fourth

Standard: New Standard


Facility Size: N/A

Accredited: N/A


Proposal:

Step-down programs for release from restrictive housing

4-ALDF-XX-XX: Written policy, procedure, and practice require that step down programs are covered in

pre-screening and post-screening evaluations.

Protocol: Written Policy and Procedure

Process Indicators: Completed prescreening and post-screening evaluations

COMMENTS:

“Please provide a definition of pre-screening and post-screening evaluations. Just not sure what is

indented by these forms/actions.”

- Jeffery Newton

- Superintendent


“We need clarification on entire standard as previously stated.”

- Jimmie Barret





behavior.





- Bruce Nicholson

170

171


Additional Comments

Response to Request for Comments on Proposed Changes to the American Correctional Association’s Adult Correctional Institution (ACI) and Adult Local

Detention Facilities (ALDF) Standards

Submitted by

The American Bar Association

January 14, 2016 Members of the Restrictive Housing Ad-Hoc Standards Committee:

The American Correctional Association (ACA) has proposed additions and

revisions to the operational standards governing the administration of restrictive

housing units (“the ACA’s standards).1 The American Bar Association (ABA)

submits the following comments in response to these proposed additions and

revisions, drawing on the ABA’s Standards on the Treatment of Prisoners (2011)

(“the ABA’s Standards”).2 The ABA’s Standards seek to supplement the expertise

contained in the ACA’s standards by advancing four key principles with regard to the

operation of correctional institutions: “that restrictions imposed on prisoners should

be justified rather than reflexive; that incarceration should be oriented toward prisoner

re-entry; that conditions should be free from cruel, inhuman or degrading treatment;

1ACA Standards for Adult Correctional Institutions (American Correctional Ass’n, 4th ed. 2003), available at http://www.aca.org/ACA_Prod_IMIS/docs/Standards%20And%20Accreditation/RH%20-%20Proposed%20Standards%20.%2012.4.2015.pdf; ACA Performance-Based Standards for Adult Local Detention Facilities (ACA, 4th ed. 2004), available at http://www.aca.org/ACA_Prod_IMIS/docs/Standards%20And%20Accreditation/RH%20-%20Proposed%20Standards%20.%2012.4.2015.pdf. 2 ABA Standards for Criminal Justice: Treatment of Prisoners (Am. Bar. Ass’n, 3rd ed. 2011), available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.pdf.

1

http://www.aca.org/ACA_Prod_IMIS/docs/Standards%20And%20Accreditation/RH%20-%20Proposed%20Standards%20.%2012.4.2015.pdf




http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.pdf

http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.pdf

and that facilities should be monitored and regularly inspected by independent

government entities.”3

Pursuant to these key principles, the purpose of these comments is to

supplement the expertise that the ACA brings to bear in defining the operational

procedures governing the administration of restrictive housing units with the ABA’s

institutional contribution to the rule of law, equity, due process, accountability, and

transparency embodied in the Standards.

The first volumes of the ABA Criminal Justice Standards were issued in 1968

and have guided criminal justice policy-makers and practitioners ever since. Warren

Burger, former Chief Justice of the Supreme Court of the United States, described

these standards as “the single most comprehensive and probably the most

monumental undertaking in the field of criminal justice ever attempted by the

American legal profession,” further recommending that everyone connected with

criminal justice “become totally familiar” with their substantive content.4

Policy groups and practitioners around the world have commended the ABA

Standards on the Treatment of Prisoners. Human Rights Watch praised the most

recently revised Standards, stating that their implementation “would advance the

protection of internationally recognized human rights in US prisons and jails…. [T]he

Standards would help ensure respect for the rights of prisoners while meeting the

needs of institutional order and security.”5

3 Margo Schlanger, Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners, 47 Am. Crim. L. Rev. 1421 (2011). 4 Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 ABA CRIMINAL JUSTICE (Winter 2009), available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/makingofstandards_marcus.authcheckdam.pdf. 5 David C. Fathi, Letter Supporting Proposed ABA Standards on the Treatment of Prisoners, HUMAN RIGHTS WATCH (July 22, 2009),

2

http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/makingofstandards_marcus.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/makingofstandards_marcus.authcheckdam.pdf

ADDITIONS AND REVISIONS TO RESTRICTIVE HOUSING STANDARDS

The proposed additions and revisions (“the Revisions”) encompass changes

both to the Standards for Adult Correctional Institutions, 4th ed. (2003), and to the

Performance-Based Standards for Adult Local Detention Facilities, 4th ed. (2004).

Generally, the Revisions represent an effort to harmonize and update the existing

ACA standards with prevailing expectations concerning the effective and humane

administration of restrictive housing units. Accordingly, the Revisions commendably

include adjustments to increase the capacity of restrictive housing units, including

policy, physical plant, and personnel qualifications; to increase the competency of

restrictive housing units, including more stringent personnel training; and to

strengthen commitment to the imperatives of transparency and accountability in the

operation of restrictive housing units. In doing so, the Revisions represent an

important step forward for the ACA Standards in delivering effective and humane

detention systems, consonant with the call made by Commissioner Donna Schriro.6

However, while some of these adjustments represent valuable progress, the Revisions

do not uniformly move in the direction that the ABA Standards advocate; each of

these departures appears in the commentary below.

Moreover, the Revisions under-emphasize a central feature of the ABA

Standards with regard to the administration of restrictive housing. The Revisions

contain no mention of an institutional commitment toward restraint in the application

of segregation and solitary confinement, as appears in ABA Standard 23-2.6(a),

which provides “[s]egregated housing should be for the briefest term and under the

http://www.hrw.org/news/2009/07/22/letter-supporting-proposed-aba-standards-treatment-prisoners. 6 See Dora Schriro, Improving Conditions of Confinement for Criminal Inmates and Immigration Detainees, 47 Am. Crim. L. Rev. 1441 (2011).

3

http://www.hrw.org/news/2009/07/22/letter-supporting-proposed-aba-standards-treatment-prisoners

http://www.hrw.org/news/2009/07/22/letter-supporting-proposed-aba-standards-treatment-prisoners

least restrictive conditions practicable and consistent with the rationale for placement

and with the progress achieved by the prisoner,” and also in Standard 23-2.7(a),

which provides “[c]orrectional authorities should use long-term segregated housing

sparingly. . . .” (Emphasis added.)

The ABA Standards emphasize restraint in the assignment of an inmate to

restrictive housing as a central feature of effective and humane detention. Indeed, as

explained in the commentary to 23-2.6, the ABA notes that “[e]ven short-term

segregated housing imposes serious burdens on prisoners (even, or perhaps especially,

when it is for their own protection), and it should be used only when justified.”

Consonantly, one of the operating principles in the ABA Standards is that effective

detention systems should seek, wherever possible, to mitigate the harm occasioned by

segregation and solitary confinement. The ABA therefore recommends that the

Revisions incorporate similar principles as a cornerstone guiding the future

administration of restrictive housing units.

Capacity

Important changes in the Revisions include adjustments to the required size of

an inmate’s cell, provision of staff consultation and medical services, and correctional

programming.

• 4-4141 affirms the requirement that cells/rooms in restrictive housing

must provide a minimum of 80 square feet, in compliance with ABA

Standard 23-3.8(e). However, 4-ALDF-2A-51 of the proposed jail

accreditation standards requires only that a restrictive housing cell be a

minimum of 70 square feet, which violates 23-3.8(e). Commentary to

Subdivision (e) of the ABA Standards also stipulates that no more than

4

one person should be housed within a segregation cell, which both 4-

4141 and 4-ALDF-2A-51 reject in providing for 25 square feet of

unencumbered space for each additional occupant in a restrictive

housing cell.

• The proposed revision to 4-ALDF-2A-64 reaffirms the standard’s

existing commitment to providing one hour of exercise five days per

week outside of the cell to inmates assigned to restrictive housing. This

violates the requirement that “[e]ach prisoner, including those in

segregated housing, should be offered the opportunity for at least one

hour per day of exercise, in the open air if the weather permits” found in

ABA Standard 23-3.6(b). Courts have long recognized the centrality of

exercise to inmates’ well-being,7 and some courts have even gone so far

as to require that this exercise be administered outdoors. See, e.g., Fogle

v. Pierson, 435 F.3d 1252, 1259-60 (10th Cir. 2006) (noting “substantial

agreement” in cases that “regular outdoor exercise is extremely

important to the psychological and physical well being of inmates”);

Toussaint v. Yockey, 722 F.2d 1490, 1492-93 (9th Cir. 1984); Spain v.

Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979). Therefore, despite the

reduced staffing levels that are to be expected during weekends, it is

essential for inmates’ well-being that they be provided at minimum an

hour of exercise, preferably outdoors, every day of the week.

7 See, e.g., Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (five hours exercise per week required for prisoners in segregation); Toussaint v. McCarthy, 597 F. Supp. 1388, 1402, 1412 (N.D. Cal.1984) (eight hours exercise per week required for prisoners in segregation), aff’d in part and rev’d in part on other grounds, 801 F.2d 1080 (9th Cir. 1986).

5

• Under 4-4400, the ACA standards require that an inmate receive a daily

visit from a health care professional that is “not meant to be a clinical

encounter[].” While this complies with the requirement in ABA

Standard 23-2.8(c)(i) that correctional staff should document prisoners’

behavior, it does not satisfy the requirements of subdivisions (c)(ii-v),

which require more intensive supervisory care by dedicated mental

health professionals equipped to evaluate an inmate’s mental health

status at regular intervals during their confinement in a restrictive

housing unit. The ABA Standards are here corroborated by the

Standards of the National Commission on Correctional Health Care (E-

09), which require daily monitoring by medical staff and at least weekly

monitoring my mental health staff. Therefore, although the ACA

Standards represent valuable progress, the oversight of qualified health

care and mental health professionals over the medical status of inmates

in restrictive housing deserves to be strengthened further than the

Revisions to 4-4400 presently suggest.

• The revised version of standard 4-4140 will make space available

“either inside the restrictive housing unit or external to the unit for

treatment staff consultation with restrictive housing inmates.” This

brings the standard in line with the requirements to enable daily face-to-

face interaction with uniformed and civilian staff as outlined in ABA

Standard 23-3.8(c)(iv).

• The revised version of 4-4251 requires access to congregate activities

and to programming commensurate with the general population of the

same security level for inmates assigned to protective custody.

6

Moreover, it provides that inmates assigned to protective custody should

be placed in restrictive housing only when no reasonable alternatives are

available. This affords parity between the level of services accessible to

inmates in protective custody and the level of services accessible to

those in the equivalent general population, consistent with ABA

Standard 23-3.8(d). However, ABA Standard 23-5.5(g)(i) stresses that

prisoners assigned to protective custody should “in no case” be housed

in a setting that is used for disciplinary housing, whereas 4-4251 is silent

on differentiating between these two types of restrictive housing.

Therefore, the revision to 4-4251 should be amended to take into

consideration the different requirements necessitated by protective

custody as distinct from administrative segregation or disciplinary

detention.

Competency

The Revisions strengthen the training and requirements for correctional

professionals entrusted with working in restrictive housing units.

• The proposed revisions to 4-4259 and to 4-ALDF-2A-54 formalize the

training and requirements of staff entrusted to work in the restrictive

housing unit by requiring “specialized training.” In both instances, the

additions make the respective standards consistent with the requirements

of ABA Standards 23-10.3(b) and (c).

Transparency and Accountability

The Revisions contain a laudable commitment to advancing transparency and

accountability in the administration of restrictive housing. Many of the Revisions now

7

include a detailed list of “Process Indicators” that will require detailed documentation

of decisions and a catalog of procedures to follow; moreover, some of the Revisions

have inserted required documentation within the standard itself (e.g., 4-4257 will

incorporate the mental health professional’s assessment of an inmate’s status as part

of a required log). Additionally, the Revisions call for a new system of “Outcome

Measures for Restrictive Housing” that will enable ongoing assessment and

monitoring of the effectiveness and administration of restrictive housing units. This

will go a long way toward repairing the absence of reliable data on which to base

future reform efforts.8

• The proposed revision to 4-4250 provides that the decision to assign an

inmate to restrictive housing will be reviewed within 24 rather than 72

hours by a superior authority who was not involved with the original

decision. Similarly, the proposed revision to 4-4262 will require review

by a superior authority of the decision to deny an inmate a shower, and

4-4264 requires the same review process for the decision to assign an

inmate to a substituted food plan. In all three instances, the revision

commendably buttresses the inmate’s due process rights. Moreover, 4-

4262 is now consistent with ABA Standard 23-3.7(c)(ii), which protects

an inmate’s “opportunities to take regular showers,” and 4-4264 is now

consistent with ABA Standard 23-3.4(c), which requires that nutritional

alternatives be provided to inmates on substituted food plans.

• Under 4-4256, a review administered every seven days for the first sixty

days, and then every thirty days thereafter, will inquire into an inmate’s

8 See, Keramet Reiter, “Making Windows in Walls: Strategies for Prison Research,” 20 Qualitative Inquiry 417 (April 2014).

8

susceptibility to harm from restrictive housing. This revision brings 4-

4256 into procedural compliance with ABA Standard 23-2.8(c), which

details the regularity of medical review of an inmate’s status in

restrictive housing. It also comports with 23-2.9(b), which requires that

health care professionals devise an individualized plan toward the

inmate’s release from segregation. However, the proposed revision is

silent with regard to the underlying substantive imperative, which holds

that placing individuals with serious mental illness in restrictive housing

constitutes cruel and unusual punishment under the Eighth Amendment

to the Constitution.9 Indeed “New Standard #2” expressly provides for

9 See, e.g., Indiana Protection & Advocacy Services Commission v. Commissioner, 2012 WL 6738517 (S.D. Ind., Dec. 31, 2012) (holding that the Indiana Department of Correction’s practice of placing prisoners with serious mental illness in segregation constituted cruel and unusual treatment in violation of the Eighth Amendment); Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1101-02 (W.D. Wis. 2001) (granting a preliminary injunction requiring the removal of prisoners with serious mental illness from “supermax” custody); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d on other grounds, 243 F.3d 941 (5th Cir. 2001), adhered to on remand, 154 F. Supp. 2d 975 (S.D. Tex. 2001) (“Conditions in TDCJ-ID’s administrative segregation units clearly violate constitutional standards when imposed on the subgroup of the plaintiffs’ class made up of mentally-ill prisoners”); Coleman v. Wilson, 912 F. Supp. 1282, 1320-21 (E.D. Cal. 1995) (finding that the California Department of Corrections and Rehabilitation was in violation of the Eighth Amendment due to system-wide failure to provide adequate mental health care, and due to the deliberate indifference of prison officials to the needs of prisoners with mental illness); Madrid v. Gomez, 889 F. Supp. 1146, 1265-66 (N.D. Cal. 1995) (holding keeping prisoners with mental illness or those at a high risk for suffering injury to mental health in Pelican Bay isolation unit unconstitutional); Casey v. Lewis, 834 F. Supp. 1477, 1549-50 (D. Ariz. 1993) (condemning placement and retention of prisoners with mental illness on lockdown; H.B. v. Lewis, 803 F. Supp. 246, 257 (D. Ariz. 1992) (finding 8th Amendment violation in part because of the lack of an adequate system for referring prisoners with behavioral problems to psychiatric staff); Langley v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1988) (holding that evidence of prison officials’ failure to screen out from SHU “those individuals who, by virtue of their mental condition, are likely to be severely and adversely affected by placement there” states an Eighth Amendment claim); T.R. et al. v. S.C. Dept. of Corrections, C/A No. 2005-CP-40-2925 (S.C. Ct. Comm. Pleas 5th J. Cir. Jan. 8, 2014) (finding major deficiencies in the Department of Corrections’ treatment of

9

the option of assigning an inmate with diagnosed serious mental illness

to restrictive housing under the condition that they “present a clear and

present danger to staff and other inmates, that is not associated with the

diagnosed mental illness.” The revision to 4-4256 and “New Standard

#2” should therefore require, in addition to regular assessments of the

inmates’ mental and behavioral health, that a finding of serious mental

illness should foreclose assignment to a restrictive housing unit

altogether.

• The proposed additions contained in New Standard #1 and New ALDF

Standards #1 and #2 provide for the creation of an individualized re-

entry plan to assist inmates in returning either to the general population

or to the community from restrictive housing. Under ABA Standard 23-

2.9, these plans should assist the inmate in progressing toward fewer

prisoners with mental illness, including solitary confinement, and ordering defendants to submit a remedial plan).

See also Letter from Jocelyn Samuels, Acting Assistant Att’y Gen., U.S. Dep’t of Justice, Civil Rights Div. & David J. Hickton, U.S. Att’y, U.S. Att’y’s Office, W.D. Penn. to Tom Corbett, Gov. of Pennsylvania, Re: Investigation of the Pennsylvania Department of Corrections’ Use of Solitary Confinement on Prisoners with Serious Mental Illness and/or Intellectual Disabilities (Feb. 24, 2014), available at http://www.prisonpolicy.org/scans/DOJ_Findings_Letter_Issued_by_DOJ_2_24_2014.pdf (finding, after a system-wide investigation, that state prisons across Pennsylvania “use[] solitary confinement in ways that violate the rights of prisoners with SMI/ID,” citing “conditions that are often unjustifiably harsh,” and detailing a number of other Eighth Amendment violations stemming from the practice of holding prisoners with serious mental illness in solitary confinement); Letter from Thomas E. Perez, Assistant Att’y Gen., U.S. Dep’t of Justice, Civil Rights Div. to Tom Corbett, Gov. of Pennsylvania, Regarding the Investigation of the State Correctional Institution at Cresson (May 31, 2013), available at http://www.justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf; Response of the United States of America to Defendants’ Motion in Limine No.4: To Exclude the Statement of Interest 2-5, Coleman v. Brown, Case No. 2:90-cv-0520 LKK DAD PC, Doc. No. 4919 (E.D. Cal. Nov. 12, 2013) (summarizing the United States government’s position on the applicability of the Eighth Amendment to the placement of prisoners with serious mental illness in solitary confinement for prolonged periods of time).

10

http://www.prisonpolicy.org/scans/DOJ_Findings_Letter_Issued_by_DOJ_2_24_2014.pdf

http://www.prisonpolicy.org/scans/DOJ_Findings_Letter_Issued_by_DOJ_2_24_2014.pdf

http://www.justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf

restrictions and lower levels of custody based on good behavior. In this

respect, the ABA Standard exceeds the constitutional minima set out in

Wilkinson v. Austin, 545 U.S. 209 (2005), for which procedural

protections require only that there be “some process”; the revisions

should instead adopt the ABA Standard to ensure that the re-entry

programs in question serve their stated purpose of facilitating post-

segregation reintegration.

• The proposed revision to 4-ALDF-2A-52 provides that inmates under

“special management” must be observed “twice per hour, but no more

than 40 minutes apart.” However, ABA Standard 23-5.4(d) recommends

that “[a]t a minimum, prisoners presenting a serious risk of suicide

should be housed within sight of staff and observed by staff, face-to-

face, at irregular intervals of no more than 15 minutes. Prisoners

currently threatening or attempting suicide should be under continuous

staff observation…” (emphasis added). The Commentary to Subdivision

(d) notes the increased chance of harm to an inmate from extended

periods of unsupervised isolation and that both the American Public

Health Association Standards (V.E.4) and the National Commission on

Correctional Health Care Standards (G-05) recommend continuous

observation.

• The proposed additions of New Standards #5, #6, and #7 seek to prohibit

assigning inmates to restrictive housing if they are pregnant women (#5),

are under the age of 18 (#6), and if the assignment was based purely on

gender identity (#7). In all three instances, the ABA Standards are silent,

but the proposed additions represent laudable steps forward in signaling

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the ACA Standards’ commitment to reducing reliance on restrictive

housing.

CONCLUSION

The proposed additions and revisions represent a valuable step forward for

improving the administration of restrictive housing units in correctional facilities

across the country. Consonant with the ideals of an effective and humane detention

policy, they expand the capacity of restrictive housing units, they buttress personnel

competency, and they advance transparency and accountability. However, comparing

the proposed additions and revisions to the existing ABA Standards illustrates that the

procedural standards for administering restrictive housing units fall short in important

ways.

The American Bar Association looks forward to working with the Committee as

it finalizes these additions and revisions, and we stand ready to assist or provide

additional information that might be helpful. For further information, please contact

Keramet Reiter, [email protected], or (949) 824-9201.

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mailto:[email protected]

LEGAL DEPARTMENT NATIONAL PRISON PROJECT

To: ACA Standards Committee From: ACLU, National Prison Project; Prisoners’ Legal Services of New York Re: Proposed Revisions to Restrictive Housing Standards Date: January 15, 2016

The ACLU National Prison Project and Prisoners’ Legal Services of New York write to express support for the proposed revisions to the Restrictive Housing Standards for Adult Correctional Institutions and Adult Local Detention Facilities (“Standards”). We commend the Standards Committee for its work to strengthen the existing ACA standards and believe that the need for strengthened standards in this arena is both urgent and necessary. The proposed changes mark a step forward in working to ensure that prisoners who are placed into restrictive housing are afforded procedural protections prior to placement, periodic review of their status, adequate medical and mental health care, and access to out-of-cell activities, programming, and outdoor exercise.

While we recognize that the proposed standards are a move in the right direction, we also believe that there are critical areas in the proposed standards where more rigorous requirements are necessary to ensure that implementation of the ACA Standards help correctional systems establish safe, effective, humane and lawful institutions. As recognized in a recent report by the Association of State Correctional Administrators (ASCA) and Yale Law School, “Prolonged isolation of individuals in jails and prisons is a grave problem drawing national attention and concern.” THE LIMAN PROGRAM, YALE LAW SCH. & ASS’N OF STATE CORR. ADM’RS, TIME-IN-CELL: THE ASCA-LIMAN 2014 NATIONAL SURVEY OF ADMINISTRATIVE SEGREGATION IN PRISON i (August 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627. In order to solve this “grave problem” we need strong standards to prevent the overuse of restrictive housing, as well as standards to ensure humane conditions in all such units.

We have submitted our comments to the proposed standards via the ACA’s web portal but submit this letter in further support of those recommendations. We would also welcome the opportunity to discuss these recommendations with members of the Committee at any time. Please contact Amy Fettig, Senior Staff Counsel, ACLU National Prison Project, [email protected]; 202-548-6608.

General Comments

First, we commend the Standards Committee’s proposal to define “Restrictive Housing” consistent with the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the “Mandela Rules”). We are aware of ASCA’s pivotal leadership around the promulgation of the Mandela Rules,

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especially as they relate to restrictive housing/solitary confinement, and commend the ACA for continuing that global corrections leadership.

But there is a key principle missing in the Committee’s proposed standards that other important corrections standards incorporate. That principle is the recognition that the severe harm and risks caused by prolonged isolation must be countered with a standard emphasizing that restrictive housing should be used only when absolutely necessary, for the least amount of time possible, in the least restrictive environment possible, and only when less restrictive alternatives to isolation are unavailable. See, e.g., Mandela Rule (“MR”) 45(1) (“Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.”); American Bar Association (“ABA”) Standard 23-2.6 (“Segregated housing should be for the briefest term and under the least restrictive conditions practicable and consistent with the rationale for placement and with the progress achieved by the prisoner.”). We recommend that the Committee adopt the language of MR 45(1) as a New Standard.

We also commend the Committee for the proposed New Standards excluding vulnerable populations, such as pregnant women (New Standard #5) and juveniles under 18 (New Standard #6) from the known harms of restrictive housing/solitary confinement. But additional protections are needed for other vulnerable populations, such as the elderly, youth over the age of 18, and prisoners with mental illnesses, or those who have physical disabilities. See, e.g., MR 45(2). (“The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.”). We further recommend that the Committee add language to each vulnerable population standard indicating that conditions in any alternative housing units for such populations should be commensurate with those in general population to the greatest extent possible.

We recommend that the Committee adopt a complete ban strictly prohibiting restrictive housing/solitary confinement for prisoners with mental illnesses where such placement could worsen their condition. We discuss the legal reasons for this recommendation and the problems with the language of the proposed New Standard #2 below. In addition, we recommend that the Committee acknowledge the protections afforded to prisoners with physical disabilities under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Consistent with the Mandela Rules, we recommend that the Committee prohibit placement of prisoners into restrictive housing where such placement could worsen their physical disabilities.

We note at the onset that without monitoring and oversight even the most comprehensive ACA Standards may not be implemented in practice. Robust

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monitoring of actual on-the-ground conditions, along with clear, precise, and comprehensive compliance measures will help to ensure that these protections are implemented in the correctional setting. Furthermore, staff buy-in and support is an essential component of any compliance regimen. Staff input can help a facility identify areas of success, as well as areas for improvement. Accordingly, where practicable, we recommend that staff and prisoner interviews be added to each “Process Indicator” to provide a qualitative aspect to the compliance checks to supplement quantitative measures.

Below we discuss our suggestions for particular proposed standards.

Definitions

Modifications to Existing Definitions

Extended Restrictive Housing—In accordance with international human right standards and a growing movement in state legislatures, we recommend amending the definition of “Extended restrictive housing” from “30 days or longer” to “longer than 15 days.” See, e.g., MR 44 (“For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.”).

Serious Mental Illness—We are concerned that focusing the proposed standards on a narrow definition of “Serious Mental Illness” will lead to corrections systems ignoring individuals who are vulnerable to the harms of extended restrictive housing/solitary confinement but who do not have a formal “Serious Mental Illness” designation. The current definition of “Serious Mental Illness” in the proposed standards reads as unduly restrictive when compared with generally accepted definitions of this type. The definition may be read to exclude those prisoners who have personality disorders, even in cases where these disorders impose functional impairments. We propose that the Committee consider changing the definition of serious mental illness to include specific Axis I diagnoses from the DSM-V, as well as any disorders that impose affective, behavioral, or cognitive impairments. Several federal civil rights cases have set forth appropriate definitions of “Serious Mental Illness” for purposes of exclusion from restrictive housing/solitary confinement, including Jones ‘El v. Berge and Ayers v. Perry. See Settlement Agreement, Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001), available at https://www.aclu.org/files/FilesPDFs/order%20and%20settlement%20agreement.pdf ; Agreement, Ayers v. Perry, No. D-0101-CV-200202294 (N.M. County Ct. Oct. 21, 2002), available at http://www.readbag.com/clearinghouse-chdocs-public-pc-nm-0003-0003.


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Alternative Meal Service—The current definition should also include a provision that the food be palatable. See, e.g., Settlement Agreement, Peoples v. Fischer, 1:11-cv-02694-SAS (S.D.N.Y. Dec. 16, 2015), available at http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf.

Proposed Additional Definitions

Currently, the Standards do not mention that state-run facilities must comply with the Americans with Disabilities Act. The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., established broad protections for individuals with disabilities, prohibiting public entities from discriminating against them and ensuring disabled individuals equal access and equal opportunity to services, programs, and activities. Title II, 42 U.S.C. § 12132 provides that:

[N]o qualified individual with a disability1 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Of particular note here is that Title II’s coverage of public entities also applies to services, programs, and activities provided in state prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998). Where appropriate, we have proposed additions to the Standards to incorporate the rights afforded to prisoners with physical disabilities under the ADA. We also suggest adding important ADA-related definitions to the proposed standards to help with clarity, including:

Americans with Disabilities Act (“ADA”)—landmark civil rights law that prohibits discrimination against individuals with disabilities and guarantees that all disabled individuals receive equal access to services, programs, and activities.

Disability—As defined under the ADA, “[t]he term ‘disability’ means, with respect to an individual--(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such

1 The term qualified individual with a disability includes

[A]n individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2).


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an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). The term “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2).

Visual Impairment—Any impairment in sight ranging from blindness to low vision.

Hearing Impairment—Any impairment in hearing ranging from being hard of hearing to being deaf.

Mobility Impairment—Any impairment or limitation in movement, which may require the use of an assistive device, such as a wheelchair, walker, or cane.

Reasonable Accommodation—A modification to a service, program, or activity that provides a qualified prisoner with a disability equal access to and/or effective communication in the service, program, or activity.

Outcome Measures

Outcome Measures 4a and 4b should be revised to more accurately capture the requirements set forth in ACI 4-4256. We propose changing the language of these outcome measures to the following:

a. Number of prisoners whose time in restrictive housing exceeded 30 days whose confinement was reviewed by the Warden/Superintendent or designee, and who were interviewed by a qualified mental health professional who prepared a written report, in the past 12 months, divided by the number of admissions to restrictive housing in the past 12 months.

b. Number of prisoners whose time in restrictive housing exceeded 30 days who received a personal interview and for whom a report was prepared by a mental health professional in the past 12 months divided by the number of prisoners whose time in restrictive housing exceeded 30 days.

We also recommend expanding the data collected for restrictive housing units to include a broader picture of conditions and actions in such units. In our policy and litigation work we’ve found the following data outcomes to be critical for ongoing monitoring and management:

a) Number of cell extractions; b) Number of incidents requiring use of force; c) Number of incidents where restraints were used (excluding the routine

use of restraints for transport);


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d) Number of prisoners placed on suicide watch; e) Number of suicides; f) Number of self-harm incidents; g) Number of prisoner-on-prisoner assaults; h) Number of prisoner-on-staff assaults; i) Number/nature of prisoner grievances; and j) Number of times restraints were used (excluding the routine use of

restraints for transport).

ACI Standards: Proposed Changes/Additions

Standard 4-4140:

Enhance this standard to include provision that living conditions include access to natural light and a view of the outdoors. Further, the treatment space for staff consultations should be reasonably private and confidential and provide adequate space relative to the size of the population.

Standard 4-4155:

The conditions of restrictive housing may subject prisoners to extreme sensory deprivation. To counter this, we recommend that the restrictive housing units have visual access to the outside world and natural light.

In addition, prisoners must have the ability to engage in large muscle exercise, which is essential to physical health, in areas where there is access to fresh air. See ABA Standard 23-3.6, Commentary to Subdivision (b). We recommend that the standard be revised to require simple but varied exercise equipment, such as chin-up bars, basketballs, squash balls, and/or a par course, so that recreational areas are not barren. See MR 23(1). We also recommend that recreational areas have a mix of open and rain/sun shielded areas and provide opportunities for prisoners to converse with one another.

Standard 4-4250:

Reducing the review period for placements into restrictive housing by an appropriate authority from 72 hours to 24 hours is a much needed strengthening of this standard. We also recommend that the reviewing authority be designated as a warden or higher. Following the completion of review of placement decisions, we further recommend that the standard require that staff work to develop a plan that provides for the prisoner’s transition back to the general population as soon as possible.


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Standard 4-4251:

Currently, the proposed standard requires that prisoners in protective custody receive “access to congregate activities and access to programming commensurate with general population of the same security level(s).” We strongly support this provision but recommend that protective custody prisoners also be permitted access to property, television, reading materials, phone calls, and visits, at a level that is “commensurate with general population of the same security level.” See ABA Standard 23-5.5(g) (“If correctional authorities assign a prisoner to protective custody, such a prisoner should be: (i) housed in the least restrictive environment practicable, in segregated housing only if necessary, and in no case in a setting that is used for disciplinary housing; (ii) allowed all of the items usually authorized for general population prisoners; (iii) provided opportunities to participate in programming and work . . . ; and (iv) provided the greatest practicable opportunities for out-of-cell time”).

Standard 4-4252:

The overuse of restrictive housing/solitary confinement is well-established. One recent study by the Vera Institute of Justice, found that prisoners are frequently placed into restrictive housing for non-violent, relatively minor reasons, such as “talking back, being out of place, failure to obey an order, failing to report to work or school, or refusing to change housing units or cells[.]” SHAMES, ET AL.,VERA INSTITUTE OF JUSTICE, SOLITARY CONFINEMENT: COMMON MISCONCEPTIONS AND EMERGING SAFE ALTERNATIVES 14 (May 2015), available at http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf. Vera reports that prisoners placed in restrictive housing for such disruptive behaviors constitute the majority of people in disciplinary segregation in some jurisdictions. Id. For example, in Illinois “more than 85 percent of the people released from disciplinary segregation during a one-year period had been sent there for relatively minor infractions, such as not standing for a count and using abusive language.” Id. (citing Email from Bryan Gleckler, Chief of Staff, Illinois Department of Corrections, to Vera Institute of Justice (April 3, 2015)).

We therefore propose that the ACA Standards place limits on the types of misconduct for which restrictive housing can be used. The use of restrictive housing for disciplinary purposes should be limited to circumstances where a prisoner poses an ongoing and serious threat to safety and security. Minor misconduct should never be punished by restrictive housing/solitary confinement. We also recommend that the standards include presumptive limits to placement in disciplinary segregation starting with the 15-day limit set forth in the Mandela Rules. MR 43(1)(b) (prohibiting the use of prolonged solitary confinement defined as “in excess of 15 consecutive days” by MR 44).


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http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf

http://www.vera.org/sites/default/files/resources/downloads/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf

For all placement decisions in restrictive housing, and prior to placement, we recommend that the facility provide the prisoner with written notice setting forth the reasons for confinement, in addition to the hearing by a disciplinary committee or hearing examiner required by the existing standard, and an the opportunity to appeal the final placement decision. We strongly support the revised standard’s additional requirement that any time served on administrative status awaiting a disciplinary hearing be credited to the final disciplinary sanction.

Standard 4-4254:

We recommend that the Standard be revised to include the requirement that written reasons for continued placement in restrictive housing be provided to the prisoner, as well as an opportunity for the prisoner to challenge the placement decision in a formal appeal process.

Standard 4-4256:

We support the enhanced mental health assessment provisions in the proposed standard. Such enhancements reflect evolving mental health practice recognized by the field and court decisions. However, a significant missing piece in the proposed language is a requirement that following the behavioral health assessment, treatment or removal from restrictive housing be mandated if the qualified mental health professional determines such actions are necessary. See ABA Standard 23-2.8 (“If the assessment indicates the presence of a serious mental illness, or a history of serious mental illness and decompensation in segregated settings, the prisoner should be placed in an environment where appropriate treatment can occur. Any prisoner in segregated housing who develops serious mental illness should be placed in an environment where appropriate treatment can occur.”). Any treatment should be provided in private and should include both pharmacological therapies and psychotherapy if appropriate.

We also recommend adding the following to the “Inquiry into” section:

- If a prisoner refuses to shower, or has hygiene or behavioral issues that have been reported by staff

In addition, for prisoners placed into restrictive housing, we recommend that in addition to requiring a daily visit by a qualified health care professional, prisoners placed in restrictive housing also receive a comprehensive examination by a health care provider within 72 hours of such placement to determine whether placement into isolation is contraindicated.


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Standard 4-4258:

We support the requirement of daily healthcare rounds in this standard. This standard should be strengthened to ensure that those rounds are effective by requiring that they take place during the prisoner’s “waking hours.” Further, the rounds should include an inquiry into: (1) the prisoner’s physical and mental health; (2) urgent requests or time-sensitive issues; and (3) overall well-being. Where the prisoner presents serious concerns relating to mental health, medical care, and/or security and safety, the prisoner’s concerns should be documented by the senior correctional supervisor, or qualified health professional, and submitted to the appropriate authority capable of resolving the prisoner’s issue in a timely manner.

Medical visits should take place in a private, quiet setting that provides the prisoner with a meaningful opportunity to speak confidentially with the health care official. For mental health check-ins or rounds, the American Bar Association recommends that mental health professionals conduct their monitoring visits in the following manner:

(i) Daily, correctional staff should maintain a log documenting prisoners’ behavior. (ii) Several times each week, a qualified mental health professional should observe each segregated housing unit, speaking to unit staff, reviewing the prisoner log, and observing and talking with prisoners who are receiving mental health treatment. (iii) Weekly, a qualified mental health professional should observe and seek to talk with each prisoner. (vi) Monthly, and more frequently if clinically indicated, a qualified mental health professional should see and treat each prisoner who is receiving mental health treatment. Absent an individualized finding that security would be compromised, such treatment should take place out of cell, in a setting in which security staff cannot overhear the conversation. (v) At least every [90 days], a qualified mental health professional should perform a comprehensive mental health assessment of each prisoner in segregated housing, unless a qualified mental health professional deems such assessment unnecessary in light of observations made pursuant to subdivisions (ii)-(iv).

ABA Standard 23-2.8(c). Substantially similar requirements should also be incorporated into the ACA’s standards.

We support the proposed standard’s minimum requirement that program staff visit prisoners in restrictive housing on a weekly basis but recommend that the standard include a requirement of specific documentation for those visits to ensure that program staff’s interaction with prisoners is meaningful. For


9

example, program staff should document visits with each prisoner, and specifically notate (1) whether the prisoner participated in the program, and if the prisoner chose not to participate, state the reasons for the prisoner refusing to participate; (2) the prisoner’s overall attitude and demeanor during the program or activity; and (3) the staff member’s general assessment of the value, or benefit, of the program or activity to the prisoner.

Standard 4-4264:

Alternative meal service should be palatable, nutritious, well-prepared, and served in a suitable manner to the prisoner. MR 22(1); ABA 23-3.4. Food should never be withheld, or used as a form of punishment.

Standard 4-4267:

We support the addition of the need to document a justification for withholding the privilege of visitation. But we recommend further protections for visitation given the importance of visitation for the development of healthy human functioning in prison and its known role in reducing recidivism and promoting rehabilitation. See, e.g., Karen Casey-Acevedo & Tim Bakken, The Effects of Visitation on Women in Prison, 25 INT’L J. COMP. & APP. CRIM. JUST. 48 (2001); William D. Bales & Daniel P. Mears, Inmate Social Ties and the Transition to Society: Does Visitation Reduce Recidivism? 45 J. RES. CRIME & DELINQ. 287 (2008); Nance E. Schafer, Exploring the Link between Visits and Parole Success: A Survey of Prison Visitors, 38 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 17 (1994); Richard Tewksbury & Matthew DeMichele, Going to Prison: A Prison Visitation Program, 85 PRISON J. 292 (2005); John D. Wooldredge, Inmate Experiences and Psychological Well-Being, 26 CRIM. J. & BEHAV. 235 (1999).

For this reason, we recommend language in the standard that clarifies that prisoners should be permitted contact visits unless there is a substantial, individualized, and documented security reason for prohibiting these visits. See ABA Standard 23-8.5(e). Where there is a substantial, individualized, and documented security reason for prohibiting contact visits, in-person, non-contact visits should be permitted unless there is a substantial, individualized, and documented security reason for prohibiting those visits. No visit should be denied outright unless there is a documented security reason, imminent threat to the safety of the prisoner, staff, or other prisoners, or threat to the overall security of the facility. Any denial of contact or non-contact visits must be approved by the Warden or the stated designee. And after some period of time, beginning at 30 days, the denial of visits to a prisoner should be re-evaluated and discontinued if the individualized security reason for such denial can no longer be documented.


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Standard 4-4269:

We recommend that this standard also specify that permitted reading material should be varied (e.g., fiction, non-fiction, news, etc.) and accessible. For example, prisoners should have access to reading materials in their first-language. Prisoners who are blind, or vision impaired, should have access to reading materials that are in Braille, large-print, or in any other format that makes such texts accessible to them.

Standard 4-4270:

We recommend that this standard be expanded to include more daily time outside of the cell for exercise. Five hours a week is insufficient to maintain mental and physical health. At the barest minimum, the ACA should adopt a standard that requires at least one hour of out-of-cell daily exercise every day of the week exemplified in other standards. See MR 23(1); ABA 23-3.6. Weather permitting, prisoners should have access to outdoor spaces that have a view of the sky and the outdoors, as well as access to fresh air.

Standard 4-4271:

The standard should be modified to clarify that any denial of phone privileges be made after an individualized and documented determination. Prisoners should have phone privileges unless there is a substantial, individualized, and documented security reason for prohibiting these privileges. Any decision denying phone privileges for security reasons must be approved by the warden, or the warden’s designee. Permanent denials of phone privileges, without ongoing substantial, individualized, and documented security reasons, should be strictly prohibited.

The standard must also account for the needs of prisoners with hearing or speech impairments. “Correctional authorities should provide prisoners with hearing or speech impairments ready access to telecommunications devices for the deaf or comparable equipment and to telephones with volume control, and should facilitate prisoners’ telephonic communication with persons in the community who have such disabilities.” ABA Standard 23-8.7.

Further, legal calls should not be limited to an attorney of record. That requirement should be eliminated from the standard because access to attorneys may not be curtailed under law and such access is not limited to the attorney of record. Prisoners may have access to attorneys interested in protecting the prisoner’s legal rights, and assisting the prisoner with potential legal claims. See, e.g., Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 643-45 (6th Cir. 2015) (determining that prisoners have a right to have


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confidential communications with attorneys from legal services organizations, like the ACLU, prior to formally establishing an attorney-client relationship).

Standard 4-4273:

We support the inclusion of behavioral health and treatment services for prisoners on restrictive housing and protective custody status but note that the standard should be strengthened to make clear that access to social workers, psychologists, counselors, and psychiatrists must be permitted from the time of initial placement into any such status or housing. Prisoners should have immediate access to mental health and program staff.

We also recommend that the standard require that prisoners in protective custody also have access to jobs where a designated authority determines that such position is appropriate and where documented security and safety concerns do not weigh against such placement.

We further recommend adding a review of unit schedules and logs to the listed process indicators.

Standard 4-4288:

We recommend that this standard also require that prisoners with disabilities be appropriately accommodated. If the prisoner is blind, or has a visual impairment recorded by the institution or self-reported by the prisoner, written orientation materials shall be presented in Braille, large print, audio format, or through other assistive devices such that these written materials are provided in a format accessible to the prisoner.

Standard 4-4400:

We recommend adding an additional standard to require that health care staff must also be informed of any reasonable accommodations that the prisoner will require during placement in segregation, including but not limited to hearing aids, glasses, mobility devices, such as wheelchairs, walkers, or canes, and other assistive devices.

New Standard #1:

We strongly support the addition of this standard. Given the potential harms inflicted upon prisoners held in prolonged isolation, direct release from isolation into the community must be strongly discouraged. Direct release from isolation can increase recidivism rates, see, e.g., David Lowell, et. al., Recidivism of Supermax Prisoners in Washington State, 53 CRIME & DELINQUENCY 633 (Oct. 2007), available at http://cad.sagepub.com/content/53/4/633.abstract, and may pose a serious danger to the community, see, e.g., Jennifer Brown & Karen

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Krummy, Half of parolees who murdered spent time in solitary confinement, DENVER POST (Sept. 23, 2013), http://www.denverpost.com/parole/ci_24140370/half-parolees-who-murdered-spent-time-solitary-confinement. Accordingly, we recommend that the standard require that prisoners be permitted to participate in a step-down program with increasing interaction with others for a minimum of six months prior to their release, unless there is an individualized and documented security reason for a prisoner’s exclusion from such a program.

New standard #2:

We support the addition of this standard but as noted above we strongly suggest that it be revised to exclude individuals with a diagnosed serious mental illness or other mental health condition that makes them especially vulnerable to the isolation of restrictive housing/solitary confinement. Decades of research and the repeated findings of the federal courts support the exclusion of individuals with mental illness from restrictive housing due to their unique vulnerability to its harms – not because they are less culpable for misconduct (although there may be many instances where that is the case). For this reason, federal and state courts have repeatedly held that placing individuals with serious mental illness in such conditions is cruel and unusual punishment under the Eighth Amendment to the Constitution. See, e.g., Ind. Prot. & Advocacy Servs. Comm’n v. Comm’r, No. 1:08-cv-013172012, WL 6738517 (S.D. Ind., Dec. 31, 2012) (holding that the Indiana Department of Correction’s practice of placing prisoners with serious mental illness in segregation constituted cruel and unusual treatment in violation of the Eighth Amendment); Jones ‘El v. Berge, 164 F. Supp. 2d 1096, 1101-02 (W.D. Wis. 2001) (granting a preliminary injunction requiring the removal of prisoners with serious mental illness from “supermax” custody); Ruiz v. Johnson, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999), rev’d on other grounds, 243 F.3d 941 (5th Cir. 2001), adhered to on remand, 154 F. Supp. 2d 975 (S.D. Tex. 2001) (“Conditions in TDCJ-ID’s administrative segregation units clearly violate constitutional standards when imposed on the subgroup of the plaintiffs’ class made up of mentally-ill prisoners”); Coleman v. Wilson, 912 F. Supp. 1282, 1320-21 (E.D. Cal. 1995) (finding that the California Department of Corrections and Rehabilitation was in violation of the Eighth Amendment due to system-wide failure to provide adequate mental health care, and due to the deliberate indifference of prison officials to the needs of prisoners with mental illness); Madrid v. Gomez, 889 F. Supp. 1146, 1265-66 (N.D. Cal. 1995) (holding keeping prisoners with mental illness or those at a high risk for suffering injury to mental health in Pelican Bay isolation unit unconstitutional); Casey v. Lewis, 834 F. Supp. 1477, 1549-50 (D. Ariz. 1993) (condemning placement and retention of prisoners with mental illness on lockdown); H.B. v. Lewis, 803 F. Supp. 246, 257 (D. Ariz. 1992) (finding Eighth Amendment violation in part because of the lack of an adequate system for referring prisoners with behavioral problems to psychiatric staff); Langley v. Coughlin,


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715 F. Supp. 522, 540 (S.D.N.Y. 1988) (holding that evidence of prison officials’ failure to screen out from SHU “those individuals who, by virtue of their mental condition, are likely to be severely and adversely affected by placement there” states an Eighth Amendment claim); T.R. et al. v. S.C. Dept. of Corrections, C/A No. 2005-CP-40-2925 (S.C. Ct. Comm. Pleas 5th J. Cir. Jan. 8, 2014) (finding major deficiencies in the Department of Corrections’ treatment of prisoners with mental illness, including solitary confinement, and ordering defendants to submit a remedial plan). In all cases involving placement decisions for prisoners with mental illnesses, the focus should be on the prisoner’s vulnerability to the harms caused by isolation rather than on the prisoner’s culpability.

Prisoners with serious mental illnesses should be affirmatively excluded from restrictive housing. See, e.g., Jeffrey L. Metzner, Class Action Litigation in Correctional Psychiatry, 30 J. AM. ACAD. PSYCHIATRY L. 19, 26 (2002) (“Although there may be exceptions, it is my opinion that the standard of care should now require either exclusion of seriously mentally ill prisoners through the previously referenced screening processes or their transfer to a specialized mental health program within the supermax prison[.]”). Under no circumstances, and even in cases where prisoners present a clear and present danger to staff and other prisoners that is not associated with their diagnosed mental illness, should prisoners with serious mental illness be placed in restrictive housing.

In light of the serious risks and harms inflicted upon prisoners with mental illness held in isolation, we strongly propose that the Committee consider making New Standard #2 Mandatory.

We also suggest that the standard or at least the commentary make note of the standard of care for mental health treatment programs in restrictive housing settings. For those prisoners with serious mental illnesses who must be placed into some form of segregation due to behavioral and/or security issues, researchers recommend that facilities provide enriched programming that includes “10 to 15 hours per week of out-of-cell structured therapeutic activities in addition to at least another 10 hours per week of unstructured exercise or recreation time.” Jeffrey L. Metzner & Joel Dvoskin, An Overview of Correctional Psychiatry, PSYCHIATRY CLIN. N. AM. 761, 764 (2006).

New Standards #3 & #4:

These new standards reflect progress in the field which we support. In our experience with the operation of step-down programs on the ground, however, we find that many of them fail to move prisoners out of restrictive housing into the general population because they require behavior that is unattainable for some prisoners, inflict overly harsh penalties for minor misbehaviors, or require

AMERICAN CIVIL LIBERTIES UNION FOUNDATION AMERICAN CIVIL LIBERTIES UNION FOUNDATION

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long stays in isolated conditions that lead to mental deterioration which then exacerbates behavior that in turn extends an individual’s stay in isolated confinement. Some step-down programs appear to create a vicious circle for certain prisoners that results in months or even years in restrictive housing. We have found that one of the greatest problems with step-down programs is that they fail to accommodate the individual needs of prisoners with disabilities. The ADA requires that prisoners who qualify for reasonable accommodations receive access to programs, like step-down programs, if such programs are available to non-disabled prisoners. To deny disabled prisoners access to such programs constitutes discrimination under the ADA. 42 U.S.C. § 12132. As public entities, prisoners must provide reasonable modifications to provide disabled prisoners with equal access to programs, 28 C.F.R. § 35.130(b)(7), and may not adopt policies that screen out prisoners with disabilities from these programs, 28 C.F.R. § 35.130(b)(8).

We suggest that the commentary reflect that step-down programs need to be calibrated for different populations and will often need to be individually-based in order to return a prisoner to general population safely, effectively, and expeditiously.

New Standard #5:

We strongly support this new standard and advocate that it be designated as Mandatory.

New Standard #6:

We strongly support this new standard and advocate that it be designated as Mandatory. We also suggest that ACA consider extending this protection to 18-21 year-olds in line with research demonstrating that the human brain is still in the process of developing during these years so that the potential for psychological harm from isolation is greater for this age group. Such considerations have informed new programs at Rikers Island that plan to exclude 18-21 year-olds from isolation housing. See N.Y.C. Bd. of Corr., Notice of Adoption of Rules, §§1-16, 1-17 (January 13, 2015), available at http://www.nyc.gov/html/boc/downloads/pdf/BOCRules Amendment_20150113.pdf; see also Laura Dimon, How Solitary Confinement Hurts the Teenage Brain, THE ATLANTIC (Jun. 30, 2014), http://www.theatlantic.com/health/archive /2014/06/how-solitary-confinement-hurts-the-teenage-brain/373002/.

New Standard #7:

We strongly support this new standard and advocate that it be designated as Mandatory.


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New Standard #8:

We propose incorporating a New Mandatory Standard # 8—adapted from the ACA’s Standards for Adult Correctional Institutions applying to prisoners with disabilities— which would provide that:

No inmate shall be placed in Restrictive Housing on the basis of disability alone. Inmates with disabilities shall be housed in a manner that provides for their safety and security. Housing used by inmates with disabilities shall be designed for their use and must provide for integration with other inmates. Programs and services shall be made accessible to inmates with disabilities who reside in restrictive housing.

Prisoners with physical disabilities are entitled to all the protections afforded to them under the ADA, including the right to be free from discrimination and segregation on the basis of their disability, 42 U.S.C. § 12132, and the right to receive reasonable modifications, 28 C.F.R. § 35.130(b)(7). It is unlawful to place prisoners in segregation due to their disabilities. Title II’s integration regulation provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The regulations define the “most integrated setting appropriate” as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B (2011). Therefore, unjustified isolation constitutes discrimination on the basis of disability under the ADA, Olmstead v. L.C., 527 U.S. 581, 597 (1999), and facilities must provide modifications that integrate disabled prisoners unless the facility can demonstrate that such a modification would result in a fundamental alteration to the nature of the “service, program, or activity,” 28 C.F.R. § 35.130(b)(7).

In our experience, however, prisoners with disabilities are often placed in these units because facility staff believe such units are the easiest way to ensure their safety, or because other, more appropriate housing is unavailable, or due to convenience. None of these reasons are sufficient under the ADA where placement decisions are made solely on the basis of the prisoner’s disability. See, e.g., 28 C.F.R. § 35.152 (b)(1) (prohibiting a correctional facility from excluding individuals with disabilities from participating in, or benefiting from, services, programs, or activities because the facility is inaccessible or unusable); id. § (b)(2)(i)-(ii) (requiring that prisoners with disabilities be housed in the “most integrated setting appropriate to the needs of the individuals” and prohibiting correctional facilities from placing prisoners in inappropriate security classifications because available beds are not accessible, or placing prisoners in “designated medical areas” unless prisoners are receiving “medical care or treatment”).


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We also suggest that this proposed new standard reflect the need to accommodate prisoner’s disabilities when a prisoner with a disability is placed in restrictive housing. 28 C.F.R. § 35.130(b)(7). ABA Standard 23-6.10 sets forth standards that we believe should be included in the Committee’s proposed standards. ABA Standard 23-6.10 provides that:

Prisoners whose health or institutional adjustment would otherwise be adversely affected should be provided with medical prosthetic devices or other impairment-related aids, such as eyeglasses, hearing aids, or wheelchairs, except when there has been an individualized finding that such an aid would be inconsistent with security or safety. When the use of a specific aid believed reasonably necessary by a qualified medical professional is deemed inappropriate for security or safety reasons, correctional authorities should consider alternatives to meet the health needs of the prisoner.

ABA Standard 23-6.10. We propose incorporating similar language into a New Standard that reflects that such accommodation must occur in restrictive housing, and the only exception to this requirement is that an institution is exempt from providing a requested modification where “making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).

Performance-based Standards for Adult Local Detention Facilities

We note that jails and prisons are institutions that often face very different challenges, however, the comments to the ACI standards above are equally applicable to proposed revisions to the Adult Local Detention Facility Standards. Specifically, we note that our comments from:

ACI Standard 4-4288 apply to 4-ALDF-2A-27









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ACI Standard 4-4155 apply to 4-ALDF-5C-04

ACI New Standard #3 & #4 apply to the ALDF New Standard

Below we note any additional comments:

4-ALDF-2A-27

If the prisoner is blind, or has a visual impairment recorded by the institution or self-reported by the prisoner, orientation materials shall be presented in Braille, large print, audio format, or through other assistive devices such that these materials are provided in a format accessible to the prisoner.


Prisoners with medical impairments, mobility impairments, visual impairments, or other disability-related impairments must be provided with reasonable accommodations to ensure them proper and safe access to shower facilities. Such reasonable accommodations include, but are not limited to, shower chairs and showers with built-in handle bars.


When a prisoner in restrictive housing is deprived of any usual authorized items or activity, including any reasonable accommodation or assistive device, a report of the action shall be made and forwarded to the facility administrator or designee for review and approval within 24 hours. A responsible medical authority or designated ADA coordinator must be consulted as part of this review.


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BOARD OF DIRECTORSFRANZISKA AMACHER, FAIAJODY BECKLYNNE ELIZABETH MARY ANN GALLAGHERKELLY GREGORYSANDRA HERNANDEZ-COLONSHAWN HESSE DON LEVERBEN SPENCERRAPHAEL SPERRYDEANNA VAN BURENDANIEL WHITTET

ARCHITECTS / DESIGNERS / PLANNERS FOR SOCIAL RESPONSIBILITY

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Architects / Designers / Planners for Social Responsibility

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American Correctional Association Restrictive Housing Committee

Jim Gondles, ACA Executive Director, [email protected] Jeffrey Washington, ACA Deputy Executive Director, [email protected] Gary Mohr, Ohio DOC, Director, [email protected] Rick Raemisch, Colorado DOC, Executive Director, [email protected]

Jan. 15, 2016 Re: Proposed changes to Restrictive Housing Standards

Dear committee members, Architects / Designers / Planners for Social Responsibility (ADPSR) is submitting comments on the proposed new Restrictive Housing standards. Given the limitations on comment length, we would like to provide some background and context for our comments. ADPSR has long believed that incarceration is used far too extensively in the United States: in its present form our criminal justice system is needlessly harsh and punitive. It often does more damage to communities injured by crime than it solves or prevents. Accordingly, we have proposed that the design effort of our professions be directed towards projects that address the root causes of crime and promote public safety, rather than towards further expansion of prisons and jails. When it comes to restrictive housing (whether it be called by that name or others such as segregation, security housing unit, or solitary confinement), we have been particularly critical of designs that implement a regime of extended social isolation and sensory deprivation. As you know, the United States’ widespread, routine, and prolonged use of solitary confinement has been roundly criticized by the United Nations Special Rapporteur on Torture for as cruel, inhuman, or degrading treatment. The recent Mandela Rules update to the United Nations Standard Minimum Rules for the Treatment of Prisoners places the entire international human rights system in the same position: demanding extremely limited use of restrictive housing only as a last resort and for no more than 15 days.

Sadly, the currently proposed standards do not aim to place ACA-accredited institutions into overall compliance with the Mandela Rules. This is a deep disappointment in general as human rights should be a bedrock of the justice system in all countries, and in particular as the Mandela Rules are not complicated or extreme by global standards: they are just as applicable to poor and developing countries as to a wealthy, well-resourced, and innovative country like ours.

ADPSR comments on ACAProposed changes to Restrictive Housing Standards 2

Because we believe that no prisons or jails should be designed or built that are not intended for compliance with basic international human rights standards, we are tempted to dismiss ACA’s entire proposal out of hand. However, we do believe that ACA’s standards will be used as a significant point of reference within American prison and jail design. We also realize that with some modification the physical facility portion of these standards -- which we are concerned with as architects, designers, and planners -- could be brought into alignment with the Mandela Rules. Again, we do not think it is sufficient to have compliant physical facilities if operational aspects of the restrictive housing violate any of the other Mandela Rules (the 15 day limit, access to health care, and so on). Our comments are not intended to indicate our approval of any areas outside of the sphere of physical facility design that fail to comply with the Mandela Rules, or to indicate our approval of ACA’s approach overall.

We recognize that ACA is trying to make progress over where much US practice is today, and we appreciate that. We also appreciate the work that committee members have done in your own states to begin to remedy the widespread overuse and horrific conditions of solitary confinement. However, we also observe the great amount of progress yet to be made at ACA and across the country. ADPSR is also working towards progress: within our field we are working with the American Institute or Architects to ensure that architectural ethics protect members from engaging in the design of spaces that are intended for cruel, inhuman, or degrading treatment. We are sorry that we could not conclude on a more positive note, but the degree of suffering in solitary confinement and the vast difference between common US practice and human rights standards leaves us still discouraged. That said, we hope that our comments, appended here and submitted through the ACA online portal, can help align the standards directed at physical facilities with human rights standards in ways that ACA can accept.

Sincerely yours,

Raphael Sperry, Architect President, ADPSR Encl: comments on Restrictive Housing Standards


Commentsonstandard4140:

1. PreparationforanduseofrestrictivehousingshouldfollowthehumanrightsstandardsoftherecentlyadoptedUnitedNationsStandardMinimumRulesfortheTreatmentofPrisoners(theMandelaRules).Thesestate,amongotherthings,thatindefiniteorprolonged(morethan15days)solitaryconfinement(over22hoursperday)shouldbeprohibited,andthatrestrictivehousingisnotexemptfromhumanrightsstandardsforlivingspace,naturallightandair,orothercriteria.

2. “Livingconditionsthatapproximatethoseofthegeneralpopulation”shouldincludesizeofthehousingunits(measuredinsquarefeet–seecommentsonstandard4141),accesstonaturallight,andviewsofoutdoorareaspergeneralpopulationareas.Lightandviewhavebeenfoundtobenecessarytothepsychologicalwell-beingofpeople;extendeddeprivationofthesefeaturesleadstofeelingsofisolationanddisorientationthatcancauselong-termharm.

3. Naturallightshouldbeprovidedsuchthatitincludesaviewofaportionoftheskyandideallyincludesareaswheresunbeamswillenterthecellandtouchthefloororwalls(unlesscellsarenorth-facing).Indirectlightingisnotofequalqualityandshouldnotbeacceptedasequivalent.

4. Viewsmustincludeanelementofvisualinteresttoprovidepsychologicalrelief,suchasviewsof:plantsoranimalsandmovement(e.g.objectsmovinginabreeze,flowingwater,orotherpeople).Viewsofwalls,emptycourtyards,andopenskyshouldnotbeacceptedasequivalent.Seethe“QualityViews”creditinLEEDversion4forfurtherinformation,notingthatsomeaspectsofLEEDarenotapplicableinacorrectionalsetting.

5. Spacefortreatmentstaffconsultationwithrestrictivehousingshouldmorespecificallyidentify:1)needforprivateconversationsaspartoftreatment;2)aminimumratiooftreatmentspacestounitpopulation,relatedtotypicaltreatmentplans,sothattreatmentfrequencyanddurationisnotcompromisedduetolackofspace.E.g.ifaunitholds48peoplewhorequiredailyone-hourtreatmentsessions;aminimumof6treatmentspacesisrequired(assumingan8-hourtreatmentshift).

Commentsonstandard4141:

1. PreparationforanduseofrestrictivehousingshouldfollowthehumanrightsstandardsoftherecentlyadoptedUnitedNationsStandardMinimumRulesfortheTreatmentofPrisoners(theMandelaRules).Prisonersareentitledtospacethatmeetstheirhealthneedsataminimum.

2. Thestandardheredoesnotexceedtheminimumareaformaximumcustodysinglecellsinstandard4-4131.Themuchgreaterlengthoftimespentinrestrictivehousingcellsshouldrequiregreaterunencumberedarea(i.e.spaceforwalking,stretching,etc.):atleastthreestepsinarow(10feet)withbotharmsextended(7feet).Therequirement


shouldbeincreasedto70squarefeetofunencumberedspaceminimumwithatleastoneunencumbereddimensionof10’.

Commentsonstandard4-4155:

1. PreparationforanduseofrestrictivehousingshouldfollowthehumanrightsstandardsoftherecentlyadoptedUnitedNationsStandardMinimumRulesfortheTreatmentofPrisoners(theMandelaRules).Prisonersareentitledtoaminimumofonehourofoutdoorexercisedailyandtophysicalandrecreationaltraining,notjustemptyoutdoorspace.

2. WenotethattheAIAAcademyofArchitectureforJusticeSustainableJusticeGuidelinesrecommendthat“100%ofinmateshaveaccesstooutdoorspacesthatincludevariedrecreationalequipment,quietspace,andamixofopenandrain/sunshieldedareas.”(Findthisdocumentatwww.aia.org/sustainablejusticeformoreinformation.)Accordingly,recreationareasforRestrictiveHousingshouldincludevariedrecreationalequipment,quietspace,andamixofopenandrain/sunshieldedareas.

Commentsonstandard4-ALDF-2A-51:

1. PreparationforanduseofrestrictivehousingshouldfollowthehumanrightsstandardsoftherecentlyadoptedUnitedNationsStandardMinimumRulesfortheTreatmentofPrisoners(theMandelaRules).Thesestate,amongotherthings,thatindefiniteorprolonged(morethan15days)solitaryconfinement(over22hoursperday)shouldbeprohibited,andthatrestrictivehousingisnotexemptfromhumanrightsstandardsforlivingspace,naturallightandair,orothercriteria.

2. ThepotentiallengthofstayinRestrictiveHousinginanALDFislongthatthesamespacestandardsshouldapplyaswithAdultCorrectionalfacilities.Theminimumunencumberedspaceshouldallowforatleastthreestepsinarow(10feet)withbotharmsextended(7feet).Therequirementshouldbeincreasedto70squarefeetofunencumberedspaceminimumwithatleastoneunencumbereddimensionof10’.

3. Restrictivehousingcellsshouldhaveaccesstonaturallightandviewsofoutdoorareas,becausethesefeaturesarenecessarytomaintainmentalhealthandpreventisolationandsensorydeprivation.

4. Naturallightshouldbeprovidedsuchthatitincludesaviewofaportionoftheskyandideallyincludesareaswheresunbeamswillenterthecellandtouchthefloororwalls(unlesscellsarenorth-facing).Indirectlightingisnotofequalqualityandshouldnotbeacceptedasequivalent.

5. Viewsmustincludeanelementofvisualinteresttoprovidepsychologicalrelief,suchasviewsof:plantsoranimalsandmovement(e.g.objectsmovinginabreeze,flowingwater,orotherpeople).Viewsofwalls,emptycourtyards,andopenskyshouldnotbeacceptedasequivalent.Seethe“QualityViews”creditinLEEDversion4forfurther


information,notingthatsomeaspectsofLEEDarenotapplicableinacorrectionalsetting.

Commentsonstandard4-ALDF-2A-64:


2. Thereseemsnobenefittochanging“receive”to“areoffered,”whiletheproposedchangeseemstoweakenthestandard’sassurancethatoutdoorrecreationistrulyavailable.Weproposekeeping“receive.”

3. ThereisnodefinitionofthequalityofoutdoorspaceavailabletopeopleinRestrictiveHousing.Ifaseparateoutdoorspaceisprovided,itshouldbeofqualityapproximatingthatofthegeneralpopulation.

Commentsonstandard4-ALDF-5C-04


2. WenotethattheAIAAcademyofArchitectureforJusticeSustainableJusticeGuidelinesrecommendthat“100%ofinmateshaveaccesstooutdoorspacesthatincludevariedrecreationalequipment,quietspace,andamixofopenandrain/sunshieldedareas.”(Findthisdocumentatwww.aia.org/sustainablejusticeformoreinformation.)Accordingly,recreationareasforRestrictiveHousingshouldincludevariedrecreationalequipment,quietspace,andamixofopenandrain/sunshieldedareas.

RESTRICTIVE HOUSING COMMITTEE (01.15.16-3)

RESTRICTIVE HOUSING vs. EXTENDED RESTRICTIVE HOUSING

POST: The proposed definition of restrictive housing and extended restrictive housing are ambiguous. Currently the

definition of restrictive housing would include those inmates in medical isolation / seclusion, inmates undergoing

admission, and in-transient inmates. Clarity would be added by modifying the definitions as follows:

Restrictive Housing - Placement in housing that separates the inmate from the general population when the

inmates continued presence in the general population would pose a serious threat to, property, staff, other

inmates, or to the security / orderly operations of the institution. Restrictive housing shall also include any

inmate confined to their cell for at least 22 hours a day; however, excludes medical isolation / seclusion, medical

observation / inpatient, those inmates undergoing admission, and in-transient inmates (short stay while awaiting

assignment to another unit / institution).

Extended Restrictive Housing should be defined as — Inmates in restrictive housing for more than 30 days.

Additionally, Standards 009 (4-4251), 011 (4-4253), 012 (4-4254) 013 (4-4256), 016 (4-4259), 028 (4-4270), 030 (4-

4273), 033 (New Standard #1), 035 (New Standard #3), and 036 (New Standard #4) should be modified to extended

restrictive housing.

MENTAL HEALTH ASSESSMENT AT 30 DAYS THEN EVERY 90 DAYS vs. WITHIN 7 DAYS THEN

EVERY 30 DAYS

POST: The proposed change to ACI 4-4256 assessment times is not necessary. Existing MANDATORY standards (4-

4400, 4-4351, and 4-4368), require 24-hour access to mental health services and a mental health program that provides

stabilization of the mentally ill / the prevention of psychiatric deterioration in the correctional setting for ALL inmates.

Additionally, existing non-mandatory standards (4-4273, 4-4258 and 4-4256) require all segregation / restrictive housing

inmates receive a medical screening upon placement in segregation / restrictive housing, receive a daily visit from a

qualified healthcare professional, and receive a regular psychological assessment to ensure the behavioral health of any

inmate confined beyond 30 days and every 3 months thereafter.

MARGO SCHLANGER Henry M. Butzel Professor of Law Phone: 734-615-2618 Email: [email protected]

910 Legal Research Building 625 South State Street

Ann Arbor, Michigan 48109-1215

January 16, 2016

Via email ([email protected]) and web portal American Correctional Association Standards Committee 206 N. Washington Street Alexandria, VA 22314

Re: Restrictive Housing Proposed Revisions Dear Colleagues, We are professors of law and related fields who conduct research, write, and teach about prisons. This letter is submitted to support the additions and revisions dealing with restrictive housing proposed for the ACA Standards and related Outcome Measures. We commend the Standards Committee for the important improvements you are proposing to the ACA’s standards. We do have a number of suggestions that we think would substantially further improve your proposals. We begin with five particularly crucial recommendations bearing on the general use of, and harm created by, restrictive housing, and then move through the proposals in order with our other recommendations. We have provided some citations and the like in support of some of our recommendations, but in order to keep this document short have not elaborated at length. If further background, support, or feedback would be useful to you, we would welcome the opportunity to provide that to you. (We have also submitted these comments, standard-by-standard, using your portal.)

1. Overarching purpose. The committee’s proposal to define Restrictive Housing consistent with the Mandela Rules is an important step. It would be beneficial to expressly acknowledge the underlying idea that long-term solitary confinement should be used as a last resort. Similarly—and in keeping with the proposal’s evident approach to privileges and restrictions, but stating that approach more clearly—we recommend adding an explicit requirement that agencies limit the restrictions and deprivations that typically accompany restrictive housing, in situations in which particular restrictions and deprivations are not necessary. (For most inmates, the emerging best practice, now in use in several states, is to increase out-of-cell time to at least 20 hours per week.) Finally, to implement this approach, we recommend that for all non-disciplinary uses of restrictive housing, the standards that the agency should develop a plan to return the prisoner to general population as soon as possible.

The language we recommend that brings all this together is:


Law Profs Comments on ACA Proposed Restrictive Housing Standards, p. 2 of 9

Prolonged restrictive housing shall be used only when necessary for safety or security, and for as short a time as possible. After fifteen days in restrictive housing, only those limitations and restrictions of privileges, property, and programming that are individually necessary for safety or security should apply. For all non-disciplinary assignment to restrictive housing, the agency should, after fifteen days, develop a plan to facilitate the return of the prisoner to general population as soon as safely possible.

2. Conditions in restrictive housing. We recommend that the standards address some of the

environmental conditions that have made restrictive housing particularly stressful and harmful for inmates. In particular, we recommend requirements of:

• a window to the outside large enough to enable the prisoners to read or work by natural

light • view of the outdoors • sufficient darkness during sleeping hours to facilitate sleep • a reasonable degree of quiet

3. Vulnerable populations (new ACI Standards 2, 5, and 6). New Standard 2 (proposal 34)

reads:

The agency shall not place a person with serious mental illness in extended restrictive housing, unless they present a clear and present danger to staff and other inmates, that is not associated with their diagnosed mental illness.

This too is an important step forward, which we commend. But it in insufficient in two ways: First, for inmates with serious mental illness, the problem with restrictive housing is not only that, as a matter of fairness, they are frequently less culpable for bad behavior, because it is associated with their mental illness. (This idea is adequately captured by the proposal.) More important—and not fully covered by the proposal—it is clear, as a matter of both science and law, that solitary confinement is especially harmful for people with mental illness. As U.S. District Judge Thelton Henderson put it in 1995, some inmates are

at a particularly high risk for suffering very serious or severe injury to their mental health, including overt paranoia, psychotic breaks with reality, or massive exacerbations of existing mental illness as a result of the conditions in the SHU. Such inmates consist of the already mentally ill, as well as persons with borderline personality disorders, brain damage or mental retardation, impulse-ridden personalities, or a history of prior psychiatric problems or chronic depression. For these inmates, placing them in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe. The risk is high enough, and the consequences serious enough, that we have no hesitancy in finding that the risk is plainly ‘unreasonable.’

Madrid v. Gomez, 889 F. Supp. 1146, 1265 (1995). The point is, it is vital to exclude people with serious mental illness from extended restrictive housing not merely because of their reduced culpability for much of the conduct that prompts the placement, but because that placement is unconstitutionally toxic to them. The proposal should be amended to take full account of this consideration.

Law Profs Comments on ACA Proposed Restrictive Housing Standards, p. 3 of 9 Second, as the Madrid quotation makes clear, the idea of excluding certain populations from extended restrictive housing because of their special vulnerability to harm in such housing is not limited to people with serious mental illness. As Judge Henderson recognized, other vulnerable populations include, as well: people with real (if not necessarily classified as serious) mental illness or a history of prior psychiatric problems or chronic depression; people with borderline personality disorders; and people with intellectual disabilities (whether caused by brain injury or other sources). Similarly, elderly prisoners, youthful prisoners (those under 22), and pregnant prisoners are all highly likely to suffer significant psychological and/or physical harm if housed in restrictive housing, and should therefore be excluded whenever possible. The exclusion of pregnant women is accomplished by proposed new standard #5, which we strongly support. Likewise, the exclusion of juveniles under 18 is accomplished by new standard #6. Leaving those two in place, we therefore recommend that the proposed new standard #2 be modified, as follows:

The agency shall not place in extended restrictive housing persons who are especially vulnerable to mental or physical harm from such placement, unless they clearly present a current significant threat to the safety of staff or other inmates that cannot be ameliorated by alternative management or housing arrangements. If such a person is housed in restrictive housing, the agency shall within 72 hours begin undertake measures to reduce their social isolation and ameliorate the risk from extreme isolation. This should include structured therapeutic activities, adequate out of cell time, and other ameliorative measures such as access to television, reading materials, etc. Persons especially vulnerable to mental or physical harm from extended restrictive housing include: inmates with current mental illness or a history of prior significant mental illness or chronic depression; inmates with borderline personality disorders; inmates with intellectual disabilities (whether caused by brain injury or other sources); elderly inmates (over 65) and youthful inmates (under 22).

We recommend, as well, that all three of these new standards (#2, #5, #6, with the changes we have proposed) be added to the Adult Local Detention Facilities (ALDF) standards.

4. Disciplinary use of restrictive housing; ACI 4-4252 (proposal 10). We recommend that disciplinary sanctions of restrictive housing be limited to serious misconduct that affects safety or security. See, e.g., Settlement Agreement, Peoples v. Fischer, 1:11-cv-02694-SAS (S.D.N.Y. Dec. 16, 2015), available at http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf. As you know, many agencies that have comprehensively reviewed their own use of restrictive housing have discovered that inmates are assigned there based on minor misconduct, and then remain there long term, because the conflictual and stressful setting amplifies rather than solves misconduct. It’s a cycle that is best avoided from the beginning by limiting use of this severe sanction for serious threats to safety or security. Again, we recommend that a similar provision be added to the ALDF standards.

5. Step-down units: New ACI Standard #3 (proposal 35), and new ALDF Standards #1 & 2 (proposals 62 and 63). Again, this is a very important step forward and we strongly support it. We do recommend that the proposal include the concept of reasonable modification for people with disabilities.


Law Profs Comments on ACA Proposed Restrictive Housing Standards, p. 4 of 9 See Americans with Disabilities Act, 42 U.S.C. § 12131(2) (defining “qualified individual with a disability,” to mean “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity”); 28 C.F.R. § 35.130(b) (7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). Under the ADA regulations, eligibility and step-down requirements must allow prisoners with disabilities to “obtain the same result [or] gain the same benefit” from agency programs as non-disabled prisoners, 28 C.F.R. § 35.130(b)(1)(iii), and agencies may not include criteria that “screen out” prisoners with disabilities from “fully and equally enjoying” programs. 28 C.F.R. § 35.130(b)(8). For analysis of this reasonable modification requirement, see, e.g., Plaintiff’s Response to Motion for Summary Judgment (July 21, 2011), Anderson v. State of Colorado, No. 10-cv-01005-WYD-KMT (D. Colo), available at http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0006.pdf; Plaintiff’s Trial Brief, Anderson v. State of Colorado (Apr. 23, 2012), available at http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0007.pdf; Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Sardakowski v. Clements, No. 12-cv-01326-RBJ-KLM. (D. Colo. Dec. 26, 2013), available at http://www.clearinghouse.net/chDocs/public/PC-CO-0024-0001.pdf. Accordingly, the definition of “Step-Down Program” should add the sentence in italics:

Definition of Step-Down Program: A system of review that requires inmates to meet certain criteria that prepares an inmate for transition to general population or the community. These individualized programs involve a coordinated, multidisciplinary approach that includes medical, mental health, case management, and security practitioners. The criteria should be reasonably modified where necessary to allow inmates with disabilities access to the step-down program.

Similar language should be incorporated into the ALDF version of this standard. In both, commentary could explain that inmates with certain mental disabilities might, for example, need shorter time frames for recognition of positive behavior. More generally, it is important that step down criteria not be so rigorous as to be all-but-unattainable. This too could be covered in commentary. We now move on to our other recommendations, taking the proposals in order:

6. Definitions (proposal 1):

• We recommend that the definition of “Alternative Meal Service” require that the food be palatable. See, e.g., Settlement Agreement, Peoples v. Fischer, 1:11-cv-02694-SAS (S.D. N.Y. Dec. 16, 2015), at IX.D, available at http://www.clearinghouse.net/chDocs/public/PC-NY-0062-0011.pdf (requiring elimination of foodloaf, and use, instead, of “nutritious, calorie-sufficient, and palatable

http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0006.pdf






alternative meal[s].” Or this same requirement could be included in ACI 4-4264 (see item 14, below).

• The proposal limits “Extended Restrictive Housing” to placements “for 30 days or longer.” Following the Mandela Rules, we believe 15 days would be a more appropriate defining point. Even if this is not changed, however, in order to cover repeated placements with a day or two off in between, we recommend the definition specify “30 days or longer in any 45 day period.”

7. Outcome measures and data collection (proposal 2). We have several recommendations to

improve the outcome measures proposed. Our suggestions are in redline below:

4a. Outcome Measure for ACI 4-4255: Number of inmates in the past 12 months whose time in restrictive housing exceeded 30 days in any 45 day period whose confinement was reviewed by the Warden/Superintendent or designee in the past 12 months divided by number of inmates whose time in restrictive housing exceeded 30 days in any 45 day period. admissions to restrictive housing in the past 12 months.

4b. Outcome Measure for ACI 4-4256: Number of inmates in the past 12 months whose time in restrictive housing exceeded 30 days in any 45 day period who received a personal interview and for whom a report was prepared by a mental health professional in the past 12 months divided by number of of inmates whose time in restrictive housing exceeded 30 days in any 45 day period.admissions to restrictive housing in the past 12 months.

These changes would ensure that the outcome measures track compliance with the specified standards, rather than merely providing a complicated way of tracking extended restrictive housing. And we suggest that item 6 be supplemented with a similar item 7 (changes in redline), to

76. Number of inmates admitted to restrictive housing diagnosed with Serious Mental Illness in the past 12 months divided by number of inmates in the facility diagnosed with Serious Mental Illnessadmissions to restrictive housing in the past 12 months.

Finally, we recommend that the data collection list be expanded to include:

M. Cell extractions N. Use of restraints not counting routine uses for transport.

Both cell extractions and restraints have been areas of particular concern for segregated prisoners. See, e.g., Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

8. ACI 4-4140 (proposal 3): We support the additional language providing for space for treatment staff consultation with inmates, but recommend that the standard specify that such space should be reasonably private. This would render the proposed standard consistent with proposal 15, which would add language to ACI 4-4256 (“The evaluation will be conducted out of cell in a confidential area except in exigent circumstances.”)


9. ACI 4-4155 (proposal 5); 4-ALDF -5C-04 (proposal 61): We recommend that outdoor exercise areas provide a view of the outdoors, not merely outside air without visual access. In addition, prisoners should be allowed to converse with each other during their recreation periods, absent an individualized, documented reason for a ban.

10. ACI 4-4250 (proposal 8) and ACI 4-4253 (proposal 11); 4-ALDF-2A-44 (proposal 41) and 4-ALDF- 2A-48 (proposal 43) We recommend that warden or higher level approval be required at some point in the process.

11. ACI 4-4251 (proposal 9): We support this proposal, but its same justification applies more broadly than the proposed language. As the proposal says, protective custody inmates should be “access to programming commensurate with general population of the same security level(s).” But they should likewise, and for the same reasons, be allowed property, television, reading materials, phone calls, etc. at that same level. We recommend edits that make this clear. We also recommend that a like provision be included in the ALDF standards.

12. ACI 4-4256 (proposal 13): We support this augmented discussion of necessary mental health assessment. We recommend that the standard expressly require treatment and changed housing assignment if the assessment so indicates. In addition, it should require that treatment be provided in private, and should include both pharmacological and talk therapies when appropriate. Finally, we recommend that an inmate’s refusal to shower for more than a week (or some specified period of time) should be an indicator that prompt additional assessment is necessary. Again, this provision should also be included in the ALDF standards.

13. ACI 4-4258 (proposal 15); 4-ALDF-2A-53 (proposal 47): We support this discussion of daily health care rounds, but recommend that further specifics be included to ensure that the encounters are meaningful—in particular that they occur during inmates’ waking hours, and that they are not merely “through the meal slot.” There must be an opportunity for the encounter to occur in a confidential setting, if the inmate does indeed have an issue to discuss.

14. ACI 4-4259 (proposal 16); 4-ALDF-2A-54 (proposal 48): Both of these Standards refer vaguely to the need for the staff working in restrictive housing units to have “specialized training.” We agree that sound operation of these units and the prompt and successful return of confined individuals to general population depend greatly on staff training. Accordingly, we recommend that these Standards include specific topics to be included in such specialized training, just as ACI Standard 4-4312 describes in detail the training needed to work in a specialized unit housing “youthful offenders.”

15. ACI 4-4264 (proposal 22): We recommend that the standard require alternative meal service be palatable. Or this same requirement could be included in the definitions section. See item 6, above.

16. ACI 4-4267 (proposal 25); 4-ALDF-2A-61 (proposal 55): We support the requirement that restraints on visiting privileges be based on documented justification; to make completely clear that this is a requirement of individuation, not merely of paperwork, we recommend that the word “individualized” be added before the word “documented” in this standard, in both the ACI and ALDF versions. More broadly, we recommend that the standard require that after some period of time (60 days, 90 days) visits should be allowed as frequently as operationally practicable.


17. ACI 4-4269 (proposal 27);4-ALDF-2A-63 (proposal 57): We recommend that these standards specify that reading material allowed/provided to inmates in restrictive housing must be varied—fiction, non-fiction, news. In addition, as required by Title VI of the Civil Rights Act of 1964 and its implementing regulations, we recommend that this standard specify the requirement of access for inmates whose English proficiency is limited. That is, the agency should provide reading materials in languages the limited-English-proficient inmates in restrictive housing can read. There is extensive support for this requirement in the U.S. Department of Justice materials on language access for corrections agencies collected at http://www.lep.gov/guidance/guidance_DOJ_Guidance.html. In addition, under the ADA, materials should be provided in a form accessible to a blind prisoner, if applicable, and appropriate for prisoners who are not fully literate (particularly if caused by a mental disability).

18. ACI 4-4271 (proposal 29); 4-ALDF-2A-65 (proposal 59): We recommend that this proposal be changed as redlined below:

Written policy, procedure, and practice provide that inmates in restrictive housing and protective custody are allowed telephone privileges unless individualized, documented security or safety considerations dictate otherwise. Restrictions would not apply to calls related specifically to access to the an attorney of record.

As with restrictions relating to visiting, general concerns are insufficient justification for limiting phone calls. In addition, caselaw is clear that inmates have the right to access lawyers who are providing or considering providing services—which is broader than “the attorney of record.”

19. ACI 4-4273 (proposal 30) 4-ALDF-2A-66 (proposal 60): We support the addition of “behavioral health and treatment services” to the list in this standard. But that addition necessitates some concomitant clarifying language to explain inmates held in disciplinary detention should receive full access to such services from day 1, not day 60. For both legal and pragmatic reasons, we also advise special care in determining what other programs and services should be available to all individuals in disciplinary detention. For example, barring prisoners in disciplinary detention from all access to “religious guidance” could invite legal challenges under the First Amendment and the Religious Land Use and Institutionalized Persons Act.

20. ACI New Standard #1 (proposal 33): When a person is being released directly into the community from restrictive housing, we recommend that rather than “notify[ing] releasing offender to applicable community resources” the standard require that the agency “take all reasonable steps to link the offender to applicable community resources.” Additional Needed Changes that Apply to Multiple Standards: There are two additional needed improvements to multiple proposed Standards that warrant mentioning here.

21. Improving notice to inmates. Many of the standards lack the basic procedural safeguard of requiring that the reason for a particular decision under consideration be explained to persons confined in restricted housing, and that he or she be allowed to provide input before the decision is finalized. Examples of standards with this deficiency include ACI Standard 4-4250 (no mention that the inmate

http://www.lep.gov/guidance/guidance_DOJ_Guidance.html

Law Profs Comments on ACA Proposed Restrictive Housing Standards, p. 8 of 9 must be provided the reason for his or her removal from the general population), ACI 4-4251 (no mention in the standard, as opposed to the comment, that a person needs to consent in writing to placement in protective custody, ACI 4-4253 (no provision for the inmate to provide feedback during the review of his or her status in restrictive housing), and new ACI Standard #1 (no mention that the inmate and family members should help in the development of a release plan). This safeguard is needed to ensure that the decisions being made are the correct ones, and to help avert the resentment that frequently occurs when a person is not afforded fair process.

22. Moving substantive requirements from commentary to Standards. A number of the comments that follow proposals contain substantive requirements that we recommend be placed in the standards themselves. A few examples:

• ACI 4-4251 (need for written consent for placement in protective custody in comment

only) • ACI 4-4265 (no mention in Standard that items and activities can’t be withheld for the

purpose of punishment or for longer than necessary to ensure the safety and well-being of the inmate and others)

• ACI 4-4268 (only the comment mentions the need for assistance in meeting court deadlines)

Again, we commend the Standards Committee for its work in this important area. As stated at the

outset, we have tried to keep this document fairly short, but would welcome the opportunity to provide additional information and support should it be useful to you.

Thank you for your attention.

Yours, (Affiliations are provided for identification purposes only. The views expressed are those of the signatories, not their institutions. ) Margo Schlanger Henry M. Butzel Professor of Law University of Michigan Andrea Armstrong Associate Professor of Law Loyola University New Orleans, College of Law

Neelum Arya Lecturer in Law UCLA School of Law

Hadar Aviram Professor of Law Harry and Lillian Hastings Research Chair UC Hastings College of the Law

W. David Ball Associate Professor Santa Clara University School of Law

Lynn S. Branham Distinguished Visiting Scholar Saint Louis University School of Law

Brett Dignam Clinical Professor of Law Columbia Law School

Law Profs Comments on ACA Proposed Restrictive Housing Standards, p. 9 of 9 Sharon Dolovich Professor of Law Faculty Director, Prison Law and Policy Program UCLA School of Law

Robert A. Ferguson George Edward Woodberry Professor of Law, Literature, and Criticism Columbia University

Malcolm Feeley Claire Sanders Clements Professor Boalt Hall School of Law University of California at Berkeley

Deborah M. Golden Adjunct Professor Georgetown University Law School

Marie Gottschalk Professor University of Pennsylvania Department of Political Science

Mona Lynch Professor of Criminology, Law & Society Professor of Law Law (by courtesy) University of California, Irvine

Hope Metcalf Executive Director and Lecturer Orville H. Schell, Jr. Center for International Human Rights Yale Law School

Alan Mills Adjunct Professor Northwestern University School of Law DePaul University College of Law

Michael B. Mushlin Professor of Law Pace Law School

Joan Petersilia, Ph.D. Adelbert H. Sweet Professor of Law Stanford Law School

Keramet Reiter Assistant Professor University of California, Irvine Criminology, Law and Society School of Law

Ira P. Robbins Barnard T. Welsh Scholar and Professor of Law and Justice American University, Washington College of Law

David Rudovsky Senior Fellow University of Pennsylvania Law School

Brenda V. Smith Professor of Law Director, Project on Addressing Prison Rape American University,Washington College of Law

P . O . B O X 2 0 8 2 1 5 , N E W H A V E N , C O N N E C T I C U T 0 6 5 2 0 - 8 2 1 5 • T E L E P H O N E 2 0 3 4 3 2 – 8 2 1 5 • F A C S I M I L E 2 0 3 4 3 2 - 4 8 7 6

C O U R I E R A D D R E S S 1 2 7 W A L L S T R E E T , N E W H A V E N , C O N N E C T I C U T 0 6 5 1 1

Yale Law School A R T H U R L I M A N P U B L I C I N T E R E S T P R O G R A M

January 19, 2016 American Correctional Association Standards Committee and Committee on Restrictive Housing 206 N. Washington Street Alexandria, VA 22314 Re: 2016 ACA Restrictive Housing Proposed Revisions Dear Members of the Standards Committee and Members of the

Restrictive Housing Ad-Hoc Standards Committee:

We write on behalf of the Liman Program at Yale Law School

where, in conjunction with correctional professionals, faculty, and students, we do research on and teach about prisons.* We submit this letter to support the effort to revise the policies of the American Correctional Association (ACA) on restrictive housing and to offer comments, as requested, on the proposed Revised Standards presented by ACA’s Restrictive Housing Ad-Hoc Standards Committee. We suggest strengthening the proposals’ potential to bring about needed changes.

During the last few years, a consensus has emerged that isolating conditions within prisons are harmful and overused. Rather than seeing restrictive housing as a solution, it has come to be understood as the problem to be solved. The question is now less about a willingness to make changes and more about how the shared goals of reducing the use of isolation can be translated on the ground, in practice.

* The Arthur Liman Public Interest Program was endowed to honor Arthur Liman, who graduated in 1957 and who personified the ideal of commitment to the public interest. In the 1970s, he co-authored Attica: The Official Report of the New York State Special Commission on Attica. The concerns about treatment of prisoners, recorded in that report, remain all too relevant today. The Liman Program continues to work in his memory in the hopes of improving access to and the practices of justice. See The Arthur Liman Public Interest Program, YALE LAW SCH., http://www.law.yale.edu/centers-workshops/arthur-liman-public-interest-program [http://perma.cc/J7SC-H5ZU].

Liman Comments Proposed Restrictive Housing Standards, January 19, 2016 2

We are keenly aware of the difficulties of making changes, given that the system of restrictive housing has been built up for decades. Our suggestions are based on what we have learned from studying restrictive housing and on the examples provided by many United States correctional professionals who have found innovative ways to reduce their use of restrictive housing.

We believe that the Revised Standards make important steps and that further

revisions are in order. Thus, we applaud the decision to revisit the ACA standards, and we endorse several of the specific modifications. Below, we propose additional changes to provide greater specificity and illustrations to help correctional systems to reduce their use of isolation. We first summarize the scope of the problem and the increasing scrutiny of restrictive housing by judges and legislators, and we then outline revisions that would, we believe, help to implement the goals of reducing the numbers in isolation and diminishing the degrees of restrictive housing’s isolation.

I. The Expansive System of Restrictive Housing Currently in Place During the past several years, through work with the Association of State

Correctional Administrators (ASCA), we have learned how entrenched the system of restrictive housing is. To do so, Liman and ASCA first researched the policies governing administrative segregation.1 Second, we surveyed prison systems to learn about the number of people in restrictive housing and the conditions in which they live.2

By reviewing policies from 47 jurisdictions, we learned that most jurisdictions gave

substantial discretion to administrators to determine who is placed in restrictive housing, and for how long. Under the policies existing in 2013, getting into restrictive housing was easy because the criteria for entry were broad.

For example, many jurisdictions defined administrative segregation as a form of

separation from the general population for an inmate who requires a higher degree of supervision because the inmate poses “a threat” or “a serious threat” to “the life, property, security, or orderly operation of the institution.”3 Under this formulation, a variety of behaviors, as well as concerns about gang affiliations, could land a person in restrictive housing. Moreover, our 2013 review found that, while some policies included step-down and

1 See Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Judith Resnik, Julie Spiegel, Haran Tae, Alyssa Roxanne Work & Brian Holbrook, Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (Yale Law Sch., Pub. Law Working Paper No. 301, 2013) [hereinafter Liman Administrative Segregation Policies 2013 Report], http://ssrn.com/abstract=2286861 [http://perma.cc/DBU3-P48H]. 2 See Sarah Baumgartel, Corey Guilmette, Johanna Kalb, Diana Li, Josh Nuni, Devon E. Porter & Judith Resnik, Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (Yale Law Sch., Pub. Law Working Paper No. 552, 2015) [hereinafter ASCA-Liman Time-In-Cell 2014], http://ssrn.com/abstract=2655627 [http://perma.cc/QJ9X-RLSN]. 3 Liman Administrative Segregation Policies 2013 Report, supra note 2, at 5.


level discussions, few policies focused on the importance of getting people out of restrictive housing.

Further, through responses by 46 jurisdictions to a 2014 survey asking some 130

questions, we learned that reliance on restrictive housing has become widespread. As of the fall of 2014, we identified more than 66,000 people in restrictive housing in 34 jurisdictions responding to our survey. Those systems housed about 73% of the country’s prisoners.4 Hence, the best estimate is that some 80,000 to 100,000 individuals were then in restrictive housing.5 As a consequence, about one person in every fifteen individuals incarcerated in prisons in the United States was in restrictive housing.

Another study, published in 2015 by the Bureau of Justice Statistics (BJS), confirms

the extensive use of restrictive housing. The BJS’s 2011-2012 survey of 91,177 inmates in 233 state and federal prisons and in 357 jails found that almost 20 percent of those surveyed had been held in restrictive housing within the prior year.6 In short, spending time in restrictive housing is a part of the experiences of many of the nation’s prisoners.

But, as the Revised Standards reflect, what we also learned is that innovative

correctional administrators across the country are reducing their reliance on isolation of prisoners. The harm inflicted by isolation is one reason to make changes. As some correctional leaders have explained, limiting isolation is “the right thing to do.”7 Moreover, shifting away from harsh isolation aims to protect the safety of both those who live and those who work in prisons, and of the communities to which prisoners will return.

II. Legal and Political Scrutiny of Isolation in Prison Correctional professionals are part of a national consensus that has put the issue of

restrictive housing on the agenda of imperative reforms in the criminal justice system. Across the United States, courts and legislators, at both the federal and local levels, are focusing on how to do so.8

4 ASCA-Liman Time-In-Cell 2014, supra note 3, at ii. 5 This tally does not include local jails, juvenile facilities, or military and immigration detention centers and at least some of the individuals held by private correctional centers. 6 See Allen J. Beck, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12, BUREAU JUST. STAT. (Oct. 2015), http://www.bjs.gov/content/pub/pdf/urhuspj1112.pdf [http://perma.cc/4V2B-YB64]. BJS did not find a correlation between a higher use of restrictive housing and improved institutional safety; to the contrary, institutions with greater use of restrictive housing also exhibited greater disorder. 7 ASCA-Liman Time-In-Cell 2014, supra note 3, at 58 tbl.22. 8 See ASCA-Liman Time-In-Cell 2014, supra note 3, at 2-7.


In 2005, in Wilkinson v. Austin, the U.S. Supreme Court concluded that prisoners have the constitutional right to procedural protections before being placed in isolating conditions that result in substantial and atypical hardships.9 In 2015, Justice Anthony Kennedy, who had authored the Wilkinson decision, addressed the issue again in his concurrence in Davis v. Ayala.10 Justice Kennedy noted that Hector Ayala, who had been sentenced to death in 1989, had spent most of “his more than 25 years in custody in ‘administrative segregation’ or, as it is better known, solitary confinement.” If following “the usual pattern,” Mr. Ayala had been held for decades “in a windowless cell no larger than a typical parking spot for 23 hours a day . . . [and] allowed little or no opportunity for conversation or interaction with anyone.”11

Justice Kennedy called for more “public inquiry or interest” into conditions of

confinement. And by way of protest, he suggested that when imposing a capital sentence, a judge tell such a defendant that “during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.”12 Moreover, Justice Kennedy raised the prospect that solitary confinement violated substantive constitutional rights. “[T]he judiciary may be required . . . to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”13 Justice Kennedy’s concerns about isolation were echoed soon thereafter by Justice Breyer who, joined by Justice Ginsburg, condemned the “dehumanizing effect of solitary confinement.”14

At the lower courts, several decisions have addressed isolating conditions for subsets of prisoners, such as those with serious mental illness or other disabilities and juveniles, as well as the population in general. Within the past two years alone, courts have approved settlements in class actions in Arizona, California, Illinois, New York, and Pennsylvania specifying the predicates to and limits on the use of isolation.15 In addition to constitutional

9 Wilkinson v. Austin, 545 U.S. 209 (2005). 10 Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring). 11 Id. 12 Id. at 2209. 13 Id. at 2210. 14 Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting, joined by Ginsburg, J.). 15 See Stipulation, Parsons v. Ryan, No. CV 12-00601-PHX-DJH (D. Ariz. Oct. 14, 2014), ECF No. 1185; Settlement Agreement, Ashker v. Brown, No. C 09-05796 CW (N.D. Cal. Sept. 1, 2015), ECF No. 424-2; Order Approving Certain Policies, R.J. v. Jones, No. 12-cv-7289 (N.D. Ill. Apr. 24, 2015), ECF No. 135 (approving Defendant’s Submission of Policies Pursuant to Paragraph I(3) of the Remedial Plan, R.J. v. Jones, No. 12-cv-7289 (N.D. Ill. Apr. 20, 2015), ECF No. 133); Settlement Agreement, Peoples v. Fischer, No. 11-CV-2694 (S.D.N.Y. Dec. 16, 2015), ECF No. 137-1; Settlement Agreement, Disability Rights Network of Pa. v. Wetzel, No. 1:13-cv-006535-JEJ (M.D. Pa. Jan. 9, 2015), ECF No. 59.


concerns, statutory bases for objections to isolation come from a variety of sources, including the Americans with Disabilities Act.16

As courts have acted to limit the use of restrictive housing, so too have legislators. Some of the efforts are, again, focused on vulnerable groups, including juveniles, the mentally ill, and the disabled. For example, states including Colorado and Massachusetts have imposed significant limits on the isolation of the mentally ill.17 At the federal level, Senators Chuck Grassley, Richard Durbin, John Cornyn, Sheldon Whitehouse, Mike Lee, Chuck Schumer, Lindsey Graham, Patrick Leahy, and Corey Booker have joined forces to co-sponsor new legislation proposing a sharp curtailment of isolation for the few juveniles in the federal system.18 That legislation follows on congressional hearings, including the 2014 hearing, “Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences,” convened by Senators Richard Durbin of Illinois and Ted Cruz of Texas.19 Thereafter, at Senator Durbin’s request, the federal prison system agreed to an independent audit of its use of restrictive housing; the auditors raised a series of concerns about the overuse of restrictive housing, the need for diagnosis and treatment of mental health needs, and the importance of providing prisoners in restrictive housing with programs and privileges akin to what is available to the general prison population.20

The developments in the United States are part of a transnational effort to limit

isolating conditions. In the spring of 2015, proposed U.N. provisions (called “the Mandela Rules” and drafted with input from U.S. correctional leaders) defined confinement of prisoners for twenty-two hours or more per day for a period exceeding fifteen days to be “cruel, inhuman or degrading treatment.”21 The rules call for banning isolation of vulnerable 16 See generally Elizabeth Alexander, “This Experiment, So Fatal”: Some Initial Thoughts on Strategic Choices in the Campaign Against Solitary Confinement, 5 U.C. IRVINE L. REV. 1 (2015). 17 See COLO. REV. STAT. ANN. § 17-1-113.8(1) (West 2015); MASS. GEN. LAWS ANN. ch. 127 § 39A(b) (West 2015). 18 S. 2123, 114th Cong. § 212 (2015). 19 Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on the Constitution, Civil Rights and Human Rights of the S. Comm. on the Judiciary, 113th Cong. (Feb. 25, 2014), http://www.judiciary.senate.gov/meetings/reassessing-solitary-confinement-ii-the-human-rights-fiscal-and-public-safety-consequences [perma.cc/RFD7-8XKZ]. 20 Kenneth McGinnis, Dr. James Austin, Karl Becker, Larry Fields, Michael Lane, Mike Maloney, Mary Marcial, Robert May, Jon Ozmint, Tom Roth, Emmitt Sparkman, Dr. Roberta Stellman, Dr. Pablo Stewart, George Vose & Tammy Felix, Federal Bureau of Prisons: Special Housing Unit Review and Assessment, CAN ANALYSIS & SOLUTIONS (Dec. 2014), http://www.bop.gov/resources/news/pdfs/CNA-SHUReportFinal_123014_2.pdf [perma.cc/72N8-AN2K]. 21 2015 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) state that “[s]olitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority.” See U.N. Standard Minimum Rules for the Treatment of Prisoners, U.N. ESC Comm. on Crime Prevention & Criminal Justice, 24th Sess., U.N. Doc. E/CN.15/2015/L.6/Rev.1 (May 22, 2015) [hereinafter Mandela Rules], http://www.unodc.org/documents/commissions/CCPCJ/CCPCJ_Sessions/CCPCJ_24/resolutions/L6_Rev1/ECN152015_L6Rev1_e_V1503585.pdf [perma.cc/BL8Y-4EF4]. Rule 44 of the Mandela Rules states that “For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without


prisoners, limiting isolation’s use to exceptional circumstances, and ensuring visiting opportunities for those in isolation. Thus, ACA’s work in revising standards on the use of restrictive housing is both timely and necessary.

III. Reframing the Problem to Focus on the Time Spent in Restrictive Confinement Whether in a standard or as an introductory statement of purposes, we think it critical

to clarify the central goals: that individuals ought not be kept for prolonged periods of time in isolation and that restrictive housing itself should be less restrictive.

The Revised Standards provide an important beginning towards these goals. By

shifting away from the justifications for isolation (discipline, protection, administration) and using the umbrella term of “restrictive housing,” the Standards reflect that whatever the justifications, the central harms of this form of housing is that it puts someone inside a cell for most of the hours of a day and for days on end.

We suggest a further step. Instead of continuing the current template reliant on the categories of administrative, protective, and disciplinary segregation as the rubrics and hence focusing on the justifications for placements in restrictive housing, the revisions should use the time spent inside cells as its framework. The concept of restrictive housing could then be placed in a binary time-frame: a first period of less than 15 days that could be analogized either as a kind of urgent-care or a need for urgent-discipline. Ideally, if 15 days is the maximum permitted, the Standards would be in accord with the Mandela Rules. However, if a second time period of placement in any restrictive setting for longer than 15 days is deemed necessary, then another set of rules would be relevant.22 In addition, attention needs to be paid to the 24-hour day itself, to consider how many in-cell hours are needed to constitute “restrictive housing” so as to provide as much out-of-cell time as possible.

Having two sets of rules divided by the 15-day presumptive maximum would help to

clarify the extra work, repeated decision-making, and different conditions that would be required if people are held for longer than 15 days. Simply put, after 15 days, restrictive housing should not be permitted to be as isolating as it currently is.

If individuals are housed for a period of more than 15 days, standards should require

significantly greater opportunities for time out of cell. The term “ten and ten” (ten hours out for programs and ten for other activities) has entered the parlance as jurisdictions put such

meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.” Id. Rule 44. The Rules conclude that such confinement constitutes “torture or other cruel, inhuman or degrading treatment or punishment.” Id. Rule 43(1). The Mandela Rules were developed in consultation with a wide range of experts from around the globe, including correctional leaders in the United States. 22 This suggestion reflects but is not identical to the 2015 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). Mandela Rules, supra note 22.


plans into their policies.23 Another approach is to ensure 3-6 hours out of cell, each day. More generally, the new ACA standards ought to incorporate the emphasis on out-of-cell time.

Thus, we suggest that the new standards include an introductory, aspirational statement to orient readers—first, that fewer people should be placed in restrictive housing, and the presumption ought to be against any stays of more than a total of 15 days; and second, that efforts should be made to minimize the degree of isolation within restrictive housing, and that the obligation to do so increases as the time in isolation continues.

Further, an introduction should explain that the decision-making process and the

collection of data are key methods of implementing these goals. The central office ought to be involved if exceptions are made to the presumptive 15-day limit, and then keep track of who is being held for those 15 days, and why, as well as any persons held for longer periods of time. Data in a searchable form should include demographic information, the reasons for extending restrictive housing, and the efforts made to begin the transition to less restrictive settings as soon as possible. Below, we detail how, through more specificity about decision-making, conditions in cells, and record-keeping, the standards could be strengthened.

A. Operationalizing Presumptions against Reliance on Restrictive Housing Given the large numbers of people currently held in restrictive housing, we suggest

that new standards clearly state that using restrictive housing with isolating conditions should be the exceptional, unusual response. Sub-policies could follow, so as to make plain that longer-than-15 days is the exception, in need of special justification and constant review.24 Thus, in addition to the important Revised Standards, which would expressly ban the use of restrictive housing for juveniles, pregnant women, and based exclusively on a person’s gender identity,25 new standards should cabin the role of restrictive housing for all prisoners.26

23 One way to operationalize this requirement is to call for “increased time out of cell for programming and recreation, no less than 20 hours per week.” This formulation is based on policies in Colorado and Washington State and related to practices in Connecticut as well. In contrast, the ACA Revised Standards 4-4270 and 4-4273 (pages 028 and 030) call for 5 hours of recreation per week and an unidentified amount of time for programming. 24 The Revised Standards move in this direction. For example, Standards 4-4250 and 4-4253 (pages 008, 011) propose a review of initial placement in restrictive housing; that such a review take place within 24 hours by “an appropriate and higher authority” not involved in the initial placement; and that thereafter a classification committee “or other authorized staff” review the placement every 7 days for the first 60 days, and then “at least every 30 days thereafter.” 25 See Revised Standard #5 (page 037); Revised Standard #6 (page 038); Revised Standard #7 (039). These Standards reflect both the evolving approaches of correctional leaders and the law on the use of restrictive housing for juveniles, pregnant women, and gender identity. 26 We should note that such an approach may well prove to be efficient in protecting institutional and individual safety. The Revised Standards recognize the need to build in protections for the mentally ill and for those who can become ill from isolation. See, e.g., Revised Standard #2 (page 034) (prohibiting use of restrictive housing for the mentally ill “unless they present a clear and present danger to staff and other inmates . . . that is not associated with their diagnosed mental illness”); Revised Standard 4-4256 (page 013) (requiring evaluation of all prisoners remaining in restrictive housing by a


Another way to implement this approach comes from comments that have been

provided to you from a group of professors, led by Professor Margo Schlanger at the University of Michigan. That group suggested that

Prolonged restrictive housing shall be used only when necessary for safety or security, and for as short a time as possible. After fifteen days in restrictive housing, only those limitations and restrictions of privileges, property, and programming that are individually necessary for safety or security should apply. For all non-disciplinary assignment to restrictive housing, the agency should, after fifteen days, develop a plan to facilitate the return of the prisoner to general population as soon as safely possible.27

In addition, we suggest adding a general statement about the importance of privacy

and of social interactions to human dignity. Restrictive housing ought to be configured to provide sufficient space for privacy and to enable interaction with other people. As the Revised Standards now do, double-celling needs to be addressed specifically, but we suggest standards that call for more modifications if two people are in restrictive housing cells. 28

Yet another route to this approach would be a general standard that because restrictive housing is to be used only for exceptional cases and as sparingly as possible, jurisdictions should develop and use alternatives to restrictive housing before resorting to the segregation or isolation of prisoners. For example, as we understand it, some correctional systems have a version of a “time-out” space for juveniles, and its use is kept to a few hours.29

mental health professional within 7 days of placement, as well as at least every 30 days if isolation continues beyond 30 days). Limiting the use of restrictive housing more generally could prove, over a longer term, to be an economical response. Focusing on the fact that everyone put into restrictive housing is potentially at risk reduces the work of trying to identify and to predict those individuals at special risk and then modifying conditions for that subset. Again, our suggestions grow out of the Revised Standards. For example, Standard 4-4256 (page 013) calls for a mental health professional to review any inmate in segregation “within 7 days of placement” and thereafter, “at least every 30 days” or “more frequently if prescribed by the chief mental health authority.” Standard 4-ALDF-2A-48 (page 043) likewise calls for review on 7 days for first six months and 30 days thereafter. What these Standards do not do, however, is provide presumptive end points. 27 Letter from Margo Schlanger on behalf of Professors to the American Correctional Association Standards’ Committee at 2 (Jan. 15, 2016). 28 See Revised Standard 4-4141 (page 004). We suggest that in addition to calling for more space, this Standard should call for areas of privacy, such that the shared toilet space has some way to be screened off, consistent with security needs, so that prisoner-prisoner privacy is maintained. In this regard, we also raise questions about reliance on prisoners, rather than staff, for protecting other prisoners from risks of suicide. Hence we suggest revisiting Standard 4-4257 (page 014) in consultation with the American Psychiatric Association. 29 See generally 51- Jurisdiction Survey of Juvenile Solitary Confinement Rules in Juvenile Justice Systems, LOWENSTEIN CTR. PUB. INTEREST (Oct. 2015), http://www.lowensteinprobono.com/files/Uploads/Documents/Pro%20Bono/51-Jurisdiction%20Survey%20of%20Juvenile%20Solitary%20Confinement%20Rules.pdf [perma.cc/JW9X-G94T].


We also wanted to emphasize that, to the extent any prisoner is to be held for 15 days or more in restrictive housing, an individualized plan needs to be created through a team consisting of mental health and correctional professionals about how that person would be returned to less restrictive settings. Further, standards could require Directors of Corrections or designated committees located in central administrations to approve decisions, at least weekly, to continue the placement of individuals in restrictive housing for periods of 15 days or more.30

B. Increasing the Time Out of Cells What we learned from Time-in-Cell is that 82% of jurisdictions reporting kept

prisoners in cells 23 hours a day and that almost 30% kept prisoners in cells 48 hours straight on weekends.31 Further, some prisoners were in such conditions for months and years on end.32

We believe the standards should state that the importance of time spent out-of-cell

grows with every day spent in restrictive housing. (Here again, the less restrictive housing is used and the shorter the time spent in it, the less extra efforts to deal with those in restrictive housing is needed.) One model comes from proposed legislation in Massachusetts, calling to make restrictive housing less limiting by requiring, for all segregation cells, “regular meals, fully furnished cells, at least one hour per day of exercise and recreation, outside if weather permits, rights of visitation and communication . . . .”33

Revised Standard 4-4270 (page 028) addresses the question of time out of cells, and

proposes the minimum of one hour, five days a week. The discussion of exercise time in Revised Standard 4-ALDF-2A-64 (page 058) likewise references the five hours a week approach. The call for programming (Revised Standard 4-4251, page 009) does not specify an amount of time for it.

These provisions are inadequate to diminish the degree of isolation that individuals

within restrictive housing experience. As mentioned above, some jurisdictions have moved to a “ten and ten” system, that calls for ten hours out for recreation, and ten for programming each week (in addition to time for showers and medical visits). While this formulation is an improvement over the current 22-23 hour confinement that is commonplace, we also suggest that the focus be on each day, to see if 3-6 hours of time out of cells can become the norm, and that no one is held for 48 hours straight (as is a practice

30 To do so, one could modify Standards 4-4250 and 4-4253 (pages 008, 011) to require such reviews for any placements exceeding 15 days. 31 ASCA-Liman Time-In-Cell 2014, supra note 3, at 38-39. 32 Id. at 27-29. 33 H.R. 1475, § 2, 189th Legislature (Mass. 2015).


in some jurisdictions on weekends). New standards ought to require that time outside a cell has to increase as the duration of restrictive housing increases.

C. Greater Specificity and Definitions We suggest revisiting the wording of several standards, evidently aiming to constrain

the use of restrictive housing but lacking sufficient specificity to do so. For example, the comment to Revised Standard 4-4251 (page 009) calls for protective custody to be used for “short periods of time.” The text also permits “long-term protection” with documentation. But the materials do not define what constitutes a “short period” or provide parameters for either “short” or “long-term.”34

Similarly, the comment to Revised Standard 4-4253 (page 011) calls for a “hearing”

for any inmate spending “more than seven continuous days in administrative segregation and protective custody;” the Standard also proposes that hearings be held repeatedly at seven-day intervals for the first 60 days and at 30 day intervals thereafter. Yet, the comment does not provide information about what constitutes “a hearing.” We learned from our 2013 review of policies that “hearings” are defined differently in many jurisdictions. Some policies include oral exchanges and others do not; some permit third parties, and others do not; some provide for assistance including lawyers and others do not.35 Standards need to address the criteria for placement in restrictive housing, the information needed for decisions, the opportunities for prisoners to participate, the availability of oral hearings, and the need for a review processes by the central administration. In short, much more guidance on the form and the substance of hearings is needed.

Similarly, the Revised Standards call for additional, prompt reviews of the placement

of prisoners in segregation and for documentations of such reviews.36 As noted above, one way to use procedures to help limit the numbers of people placed in isolation and the duration of their confinement is to require that for any person held more than 15 days, the Director or designee in central administration has to approve the continued detention. This suggestion is modeled after policies that already exist in some jurisdictions, which require

34 Yet, other revisions make plain the areas in which change is expected. For example, Standard 4-4250 (page 008) calls for review of segregation “within 72 hours by the appropriate authority,” while the Revised Standard calls for decisions to remove individuals from the general population to be reviewed “within 24 hours by an appropriate and higher authority who is not involved in the initial placement.” 35 See Liman Administrative Segregation Policies 2013 Report, supra note 2, at 11-14. Thirty-eight states then required a hearing, but the provisions were far from uniform. Id. at 11. For example, the majority permitted prisoners to present evidence, but some jurisdictions did not. Id. at 12. Some jurisdictions authorized decision-making by committee, while others delegated this authority to a hearing officer. Id. at 12. The time frame for and conduct of hearings also varied. Id. at 11-12. 36 See Revised Standards 4-4250 (page 008), 4-4251 (page 009), 4-4242 (page 010).


director approvals if a person is to remain in segregation for specified time periods, such as six months.37

The Revised Standards themselves provide models of such clear statements. Revised

Standard #1 (page 033) calls for written policies seeking to ensure that “offenders are not to be released directly into the community” and that prisoners be provided with a “pre-release step down program.” We should add that the need for such direction is well documented. The ASCA-Liman Time-in-Cell Report learned from 30 jurisdictions collecting and reporting data for 2013 on release that 4,400 prisoners were released from segregation directly into their communities.38 Further, if the individualized plan we suggested above was in place for each prisoner in restrictive housing for 30 days or more, that plan would provide a significant buffer against the direct-release to the community.

IV. Conditions within Restrictive Housing and Opportunities for Interpersonal Exchanges In our 2014 survey, we documented how conditions of segregation and the degrees

of prisoners’ isolation varied significantly from jurisdiction to jurisdiction. Nonetheless, some generalizations were possible.39 The cells were small, ranging from 45 to 128 square feet, sometimes for two people.40 In the majority of jurisdictions, prisoners spent twenty-three hours in their cells on weekdays, and in 30% of jurisdictions, prisoners spent forty-eight hours straight on weekends.41 Opportunities for social contact, such as out-of-cell time for exercise, visits, and programs, were limited, ranging from three to seven hours a week in many jurisdictions.42 Phone calls and social visits could be as infrequent as once per every three months, once a month, or only when emergencies arose. Other jurisdictions provided more opportunities.43 Moreover, in most jurisdictions responding to the ASCA-Liman survey, prisoners’ access to visits, calls, programs, and exercise, as well as what prisoners were allowed to keep in their cells, could be limited as sanctions for misbehavior.44

37 See Liman Administrative Segregation Policies 2013 Report, supra note 2, at 16. For example, as of the policies in 2013, Maine required approval by the commissioner for segregation longer than 6 months, Maryland required approval by the commissioner for segregation longer than one year, and Colorado required that the deputy director meet personally with an inmate to determine propriety of segregation longer than one year. Id. 38 ASCA-Liman Time-In-Cell 2014, supra note 3, at 29. 39 See id. at 39. 40 Id. 41 Id. at 37-39. 42 Id. at 41-49. 43 Id. at 46. 44 Id. at 49-50 tbls.16-17.


Reading these current standards taught us that they provide more opportunities than

were reported as available in the responses to the ASCA-Liman surveys. The gap can be explained as a lack of training or compliance, or by standards that are so general and that have exceptions so permissive as to license holding prisoners in more restrictive conditions. This difference between the standards and the reports of practices in 2014 underscores the importance of clearer guidance.

A central issue is the physical environment. Standards should require access to direct

natural light and, when possible, the opportunity to see both the sky and outdoor space other than another brick wall; heat and coolness controls appropriate to the climate; darkness for nighttime sleeping hours; and reasonable amounts of time during which quiet prevails. These improvements will help both prisoners and staff by alleviating the stress that comes from extreme heat (reported in some institutions in summer months to exceed 100 degrees) and from high levels of noise. We understand that, given the architecture of prisons, our proposals are challenging, but standards need to state goals and to specify what constitutes humane confinement.

We are also aware that these calls for improvements in access to natural light and

sights, as well as moderated temperatures and noise levels, may well be needed in many prisons for people in the general population. For example, Revised Standard 4-4140 (page 003) states: “Restrictive housing units provide living conditions that approximate those of the general inmate population.” Here again, aspirations are important. The many prison facilities across the United States that are in need of repair and renovation counsel against using conditions in the general population as the sole baseline, without explanations of what conditions should be.

The Revised Standards discuss layouts of facilities when calling for spaces for

“treatment staff consultation” and “[p]rocess [i]ndicators” to “ensure inmates have access to both indoor and outdoor recreation areas.”45 Yet the same proposals also include caveats, that “all exceptions” be “clearly documented,” including if exceptions are made to providing access to “indoors and outdoor recreation areas.”46

Similarly, in Revised Standard 4-4155 (page 005), important details are provided on

minimum sizes of outdoor group and individual yard “modules.” But while calling for “unencumbered space,” the Standard does not specify how prisoners have access to such spaces. Likewise, Revised Standard 4-4273 (page 030) calls for policies providing prisoners in restrictive housing access to a host of services and programs, to the extent possible. Yet we

45 Revised Standard 4-4140 (page 003). 46 Id.


know from the responses to questions in the ASCA-Liman 2014 survey that such programming was not regularly available.47

Further, Revised Standard 4-4262 (page 020) on showers continues the current

Standard that showers be available “at least three times per week.” The proposal adds requirements that senior correctional supervisors review limits, if imposed, on showers. In Revised Standard 4-ALDF-2A-57 (page 052), the statement is made that exceptions are “permitted only when determined to be necessary.”

Depriving prisoners of showers should not be permitted, absent documentation that

doing so is to prevent self-harm or harm to others. Further, a decision to do so should be made through consultations with senior mental health professionals and with the approval by the Director or designee. Simply put, limiting showers to fewer than three-a-week should not be used as a sanction. Further, to the extent that disruptive activity takes place when individuals take showers, such behavior should be seen as evidence of the need to involve mental health professionals.

Similarly, current Standard 4-4261 (page 018) states that prisoners should be given

“clothing that is not degrading and access to basic personal items for use in their cells,” unless problems of destruction and self-harm are documented. Standard 4-4263 (page 021) specifies the need to provide laundry, hair care, and the like, again with documentation of instances when use is limited. In addition, Revised Standard 4-ALDF-2A-56-1 (page 051) calls for written policies to provide “all inmates in restrictive housing” with “suitable clothing and access to basic personal items” absent an “imminent danger” of destruction of the items or of self-harm.

But no guidance is provided about how to assess when to limit use and how to enable

the prisoner to be able to regain clothing and items again. When individuals misuse clothing, they may be doing so as a form of protest or as a sign of mental illness. We suggest more specificity—for example, that clothing, opportunities for personal grooming, and personal items in cells ought not to be taken away absent extraordinary circumstances, and that doing so requires consultation with mental health professionals and a plan for as prompt a return to normal treatment as possible. The Standard could also require that items taken away should presumptively be returned after a set period of time.

Another concern is about opportunities for social contact through visits and phone

calls. Standard 4-4267 (page 025) calls for prisoners in restrictive housing to have “opportunities” for visits, unless (as revised) “substantial documented reasons” are given for withholding those opportunities. Standard 4-ALDF-2A-61 (page 055) calls for visits, “unless there are substantial reasons for withholding such privileges;” and denials are to be documented. But the ASCA-Liman Time-In-Cell Report found that social visits were

47 ASCA-Liman Time-In-Cell 2014, supra note 3, at 48-9.


sometimes limited to once every three months, or once a month, and moreover that staff could preclude visits as a sanction.48 These Standards do not have enough direction on what constitutes reasons for depriving individuals of visits.

Standard 4-4271 (page 029) addresses the need to provide thorough policies and

practices that give inmates in administrative segregation phone call privileges “unless security or safety considerations dictate otherwise” and call for documentation of decisions to deny calls. But the Standard provides no definition of what constitutes phone call privileges. As written, the Standard does not preclude policies that provide for once-a-month (or once every three month) calls of no more than five-minutes.49 Further, the Revised Standard offers no details about the importance of limiting the suspension of calling privileges.

In addition, Standard 4-ALDF-2A-65 (page 059) provides that prisoners in

disciplinary detention can lose all calls except for family emergencies and those related to the judicial process. Yet even in detention facilities, people can be held in disciplinary segregation for months and years. Preventing access to the outside world undercuts the ability of those persons to regain their place in that world. Thus, the Standards should require increased social contact the longer a person is held in restrictive housing. Any suspensions of social contact should be limited to a specific, brief interval (such as two days).

In short, opportunities for prisoners to socialize in segregation are already

constrained. Yet maintaining social, community, and familial ties plays a critical role in supporting prisoners while incarcerated, reducing violence in prisons, and enabling more successful returns to the community and therefore reducing recidivism. The Mandela Standards prohibit limiting access to family visits as a sanction (with the caveat for exceptional circumstances requiring temporary limits to preserve safety).50 That approach is correct, and to implement it, standards could specify that prisoners should have opportunities for telephone use, legal and social visits, written correspondence, access to reading materials, and access to programming on the same basis as inmates in the general population. Further, decisions to limit such access should only be based on a documented danger to others (including the other prisoners, staff or visitors), or the prisoner himself. Such limits should expire as soon as possible, and if after 15 days, senior staff in the central administration should determine the need to continue the sanctions.

48 Id. at 44-45. 49 Id. at 45 n.181. 50 Rule 43 of the Mandela Rules provides: “Disciplinary sanctions or restrictive measures shall not include the prohibition of family contact. The means of family contact may only be restricted for a limited time period and as strictly required for the maintenance of security and order.” Mandela Rule 43(3), supra note 22.


V. Special Populations A. Confinement of the Mentally Ill We appreciate that the Revised Standards focus on vulnerable populations in

segregation, including the mentally ill. We write to support the commentary provided by Professor Schlanger and her colleagues that the Revised Standards need to be clear in limiting restrictive housing for such individuals. Thus, as the Law Professors letter put it, Revised Standard #2 could be modified as follows:

The agency shall not place in extended restrictive housing persons who are especially vulnerable to mental or physical harm from such placement, unless they clearly present a current significant threat to the safety of staff or other inmates that cannot be ameliorated by alternative management or housing arrangements. If such a person is housed in restrictive housing, the agency shall within 72 hours undertake measures to reduce their social isolation and ameliorate the risk from extreme isolation. This should include structured therapeutic activities, adequate out of cell time, and other ameliorative measures such as access to television, reading materials, etc. Persons especially vulnerable to mental or physical harm from extended restrictive housing include: inmates with current mental illness or a history of prior significant mental illness or chronic depression; inmates with borderline personality disorders; inmates with intellectual disabilities (whether caused by brain injury or other sources); elderly inmates (over 65) and youthful inmates (under 22).

B. Women in Restrictive Housing In the 2014 Time-in-Cell Report, 38 jurisdictions reported that some 700 women were

in administrative segregation, one form of restrictive housing.51 Thus, as the Standards reflect, the population is overwhelmingly male.

We welcome that the Revised Standard calls for a ban on the isolation of pregnant

women.52 In addition, the Standards ought to recognize the other women who are in such confinement and require attention to their specific health, hygiene, or other needs.

VI. Supervising Staff and Recording the Use of Restrictive Housing The Revised Standards reflect the challenges that restrictive housing imposes on

prison administration. The ASCA-Liman Study detailed the difficulties of staffing such units53 and the wide variety of practices in recordkeeping.54 Moreover, from the data that 51 ASCA-Liman Time-In-Cell 2014, supra note 3, at 20-21. 52 Revised Standard #5.


were kept, demographic disparities were documented. Racial and ethnic minorities were overrepresented in restrictive housing when compared with a particular prison system’s population as a whole.55 Thus, we support Standard 4-4259 (page 016) calling for additional training and certification in correctional behavioral health, and Standard 4-4260 (page 017) calling for permanent logs to be reviewed by both the warden and health authority.

But more is needed. We suggest directions be provided on the format of such logs

and that throughout the Standards, more detail be given whenever a Standard calls for documentation. The aims should be to have centralized reporting of numbers of individuals in all forms of restrictive housing, to have specific information on the demographics of those in restrictive housing (age, gender, race and ethnicities; reason for incarceration), the reasons for placement, the length of stay, the staffing of units, and incidents of problems in the units. Further, the materials should be recorded and kept in a format that is searchable so that one can learn about patterns that could reveal problems to be addressed.

* * *

We know that the project of Revising Standards for Restrictive Housing is ambitious

and entails a host of challenges of financing, staffing, and culture. The proposals made by the Ad Hoc Committee on Restrictive Housing will help to bring about changes that are imperative. Strengthening the new standards will reflect the degree of consensus that has developed about the need to unravel reliance on isolation as a form of incarceration, respond to legal obligations, and provide the necessary roadmap for doing so. The best estimates are, as we noted, that 80,000 to 100,000 people are restrictive housing now in U.S. prisons. Our hope is that, under revised standards, those numbers will decline steeply in the coming years. Moreover, with new standards in operation, the term “restrictive housing” will no longer be a euphemism for isolation.

Thank you again for attention to this important issue and to these comments. We

would be happy to provide additional information, if that would be useful.

53 ASCA-Liman Time-In-Cell 2014, supra note 3, at 50-51. 54 Id. at 53-54. 55 Id. at 30-36.