Legislation

Legislative Spotlight: Colorado’s 2021 Statute § 17-26-303

Colorado’s statute forbade, with some exceptions, local jails from involuntarily placing a person in solitary confinement if the individual “is diagnosed with a serious mental illness,” self-reports as having a serious mental illness, experiences “significant auditory or visual impairment,” is pregnant or in the postpartum period, “is significantly neurocognitively impaired,” is under eighteen years of age, or “has an intellectual or developmental disability.”

The statute also required that the jail “document the facts and circumstances . . . that lead to placing the individual into restrictive housing, when the local jail staff's observations occurred, any efforts to avoid placement of the individual into restrictive housing, and a description of all alternatives and interventions that were attempted to avoid restrictive housing” and “document any injuries experienced by the individual and the local jail staff or other medical issues exhibited by the individual in the process of placing the individual in restrictive housing.” The statute required that the jail “notify its medical or mental health professionals in writing when an individual is involuntarily placed in restrictive housing within twelve hours of the placement” and “notify the individual's appointed or retained legal representative, designated emergency contact, or legal guardian within twelve hours of the individual's involuntary placement and removal in restrictive housing.”

For people in solitary confinement, the statute required that “every twenty-four hours, a medical or mental health professional shall assess, face-to-face, the individual placed in restrictive housing for any psychiatric or medical contraindications to the placement” and that “at least every forty-eight hours and more frequently, if possible, a mental health professional shall assess the individual face-to-face for the need for ongoing placement in restrictive housing and document [that] need . . . or shall document an opinion that restrictive housing is no longer required.”

By way of procedural protections, the statute required that the jail “provide the individual a clear explanation of the reason the individual has been placed in restrictive housing, the monitoring procedures that the local jail will employ to check the individual, the date and the time, when the individual's next court date is, and the behavioral criteria the individual must demonstrate to be released from restrictive housing.” The statute limited the use of solitary confinement, without a court order, to fifteen days within a thirty-day period.

The statute also regulated the conditions of solitary confinement. The statute provided that the jail “shall supply the individual with basic hygiene necessities, including shaving and showering at least three times per week; exchanges of clothing, bedding, and linen on the same basis as other individuals in the general jail population; access to writing letters or receiving letters; opportunities for visitation; access to legal materials; access to reading materials; a minimum of one hour of exercise five days a week outside of the cell; access to outdoor exercise at least one hour per week, weather permitting; telephone privileges to access the judicial process and to be informed of family emergencies as determined by the local jail; and access to programs and services that include, but are not limited to, educational, religious, and recreational programs and medical, dental, and behavioral health services and medications, unless providing the item, program, or service would endanger the safety of the individual, other inmates or staff, or the security of the local jail.” Failure to provide these conditions requires documentation of the reasons for denial.

Legislative Spotlight: Connecticut’s PROTECT Act, 2022

In 2021, Connecticut’s legislature enacted a bill, also called PROTECT, to regulate and stop the use of solitary confinement. Because the governor declined to sign the statute, it did not become law. In its place, the governor issued an executive order requiring the Connecticut Department of Correction to reduce the use of solitary confinement for anyone under eighteen years old or sixty-five years old or older; pregnant or postpartum; or suffering from certain mental health conditions, medical conditions, developmental disabilities, or “significant auditory or visual impairment[s].” The executive order directed that solitary confinement for twenty-two hours a day for fifteen or more days be used under “extraordinary circumstances.”

Some months later, the Connecticut General Assembly passed a revised PROTECT Act that the governor signed into law in 2022. This statute limited the number of days the DOC may place a person in isolated confinement to no more than fifteen consecutive days or thirty total days within any sixty-day period. This provision applied to individuals in pretrial, presentencing, and post-conviction confinement. It also required that people in solitary confinement have two hours out of cell. PROTECT also created an independent “ombuds” position to investigate complaints about the DOC.

“This law makes it clear that isolated confinement should only be used in extreme circumstances,” Governor Lamont said in his May 2022 statement when signing the bill. “It also increases transparency and provides greater independent oversight of our correctional facilities.”

Stop Solitary CT and its founder, community activist Barbara Fair, were among the advocates and researchers instrumental in securing passage of the law. “I can finally exhale because I know it’s actually signed,” Fair told a Connecticut newspaper. “It’s been an exhausting session but to get the bill signed makes it all worthwhile.”

Legislative Spotlight: New York’s Halt Act

The HALT Act, passed in New York’s 2020-2021 Regular Session, limited the use of solitary confinement to 15 consecutive days, defined solitary confinement as keeping someone in a cell for 17 or more hours, and eliminated the use of solitary confinement for certain populations by banning its use for people who are “twenty-one years of age or younger; fifty-five years of age or older;” living with a disability; or pregnant, postpartum, or caring for a child in a correctional institution. HALT also restricted the use of segregated confinement for people diagnosed with a “serious mental illness.”

More generally, the HALT Act prohibited solitary confinement for more than three consecutive days or more than six days in a thirty-day period unless the person was found, “pursuant to an evidentiary hearing,” to have “violated department rules which permit a penalty of segregated confinement.” If the person was found to have committed such a violation, the statute prohibited placement in “segregated confinement” for “longer than necessary and no more than fifteen consecutive days or twenty total days within any sixty-day period.”

The HALT Act required correctional administrators to publish monthly reports online detailing demographic information of people in “segregated confinement,” the “number of days [spent] in segregated confinement, a list of all incidents resulting in sanctions of segregated confinement by facility,” and the number of people in segregated confinement by facility. The Act also required “out-of-cell programming at least four hours per day, including at least one hour for recreation.” The HALT Act became effective on April 1, 2022.

Since its passage, some organizations representing correctional staff have called for the repeal of HALT, and HALT’s proponents have raised concerns about delays in implementation.

In terms of legislation at the federal level, Congress enacted the First Step Act of 2018, which provided that “the involuntary placement of a covered juvenile alone in a cell, room, or other area” for “any reason other than as a temporary response to a covered juvenile’s behavior that poses a serious and immediate risk of physical harm to any individual, including the covered juvenile, is prohibited.” In the event of “a serious and immediate risk of physical harm,” the First Step Act permitted solitary confinement for youths in federal custody of no more than three hours. The First Step Act also required data collection and publication of annual reports detailing the characteristics of people placed in solitary confinement, how long they were held there, and why.

In addition, between 2021 and 2022 (the 117th Congress), several members of the House of Representatives and of the Senate introduced legislation related to solitary confinement. Of the nineteen bills and six resolutions that referenced “solitary confinement,” H.R. 176, the “Restricting the Use of Solitary Confinement Act” (RUSCA), would have limited the reasons for placement, created procedural protections governing placements, capped the duration, regulated the conditions, and restricted when correctional officials could release people from solitary confinement to outside prison.

Another proposal was H.R. 131, the “Effective and Humane Treatment of Youth Act of 2021” or “Kalief’s Law”, named for Kalief Browder, an African American teenager from The Bronx, New York, who was held from 2010 to 2013 without trial at N.Y.C.’s Rikers Island jail complex for allegedly stealing a backpack containing valuables. During his imprisonment, Browder was in solitary confinement for 700 days. He died by suicide after release. Kalief’s Law would have capped solitary confinement for youth at three hours and it would have prohibited “consecutive periods of temporary separation for the same episode of behavior.” Kalief’s Law would also have prohibited putting people 21 years of age and younger in “temporary separation” for “any purpose other than a temporary response to behavior of the individual that poses a serious and immediate risk of physical harm to that individual or to others.” Kalief’s Law would have required a “good faith effort” to use less restrictive techniques than solitary confinement and would have regulated the conditions of solitary confinement cells.

Turning to the executive branch, President Biden issued an Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety on May 25, 2022. The Executive Order stated that the Administration’s policy was “to ensure that conditions of confinement are safe and humane, and that those who are incarcerated are not subjected to unnecessary or excessive uses of force, are free from prolonged segregation, and have access to quality health care, including substance use disorder care and mental health care.” Two sections referred to “restrictive housing.” The first ordered the Attorney General, within 120 days, to undertake “updating BOP and USMS procedures and protocols . . . to identify alternatives consistent with public health recommendations to the use of facility-wide lockdowns to prevent the transmission of SARS-CoV-2, or to the use of restrictive housing for detainees and prisoners who have tested positive for SARS-CoV-2 or have known, suspected, or reported exposure.” The President also ordered the Attorney General to, within 180 days, submit to the President a report describing steps the Department of Justice has taken to—among other goals—“ensure that restrictive housing in Federal detention facilities is used rarely, applied fairly, and subject to reasonable constraints,” and to implement the department’s January 2016 Report and Recommendations Concerning the Use of Restrictive Housing.