THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII
A BILL FOR AN ACT
relating to corrections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that experts have long documented the detrimental effects of solitary confinement on individuals. Spending time in solitary confinement has been found to increase the risk of premature death, even after release from incarceration. Solitary confinement is a severe form of punishment that is closely associated with long-lasting psychological harm and poor post-release outcomes. The official purposes of solitary confinement are typically divided into punishment and correctional facility management. When used as punishment by facility authorities, sometimes called "disciplinary custody" or "disciplinary segregation", solitary confinement serves as a response to misconduct charges such as fighting or drug use. When used for correctional facility management, often called "administrative custody" or "administrative segregation", solitary confinement serves to separate inmates deemed to pose a threat to staff or other inmates, or as protective custody for inmates who seem or are determined to be unsafe in the general prison population. Although the purposes of solitary confinement vary, correctional facility conditions and restrictions are often similar whether an incarcerated person is in disciplinary or administrative custody.
The legislature also finds that an overwhelming body of evidence shows that solitary confinement--which deprives inmates of meaningful human contact, including phone privileges that allow them to speak with loved ones--creates permanent psychological, neurological, and physical damage. The legislature notes that House Concurrent Resolution No. 85, H.D. 2, S.D. 1 (2016), requested the establishment of a task force to study effective incarceration policies to improve Hawaii's correctional system. The interim report of the task force, which was dated February 2017 and provided to the legislature, included an observation by the Vera Institute of Justice that the prevalence of incarcerated people having mental illness is at odds with the design, operation, and resources of most correctional facilities. Studies show that the detrimental effects of solitary confinement far exceed the immediate psychological consequences identified by previous research, such as anxiety, depression, and hallucinations. Unfortunately, these detrimental effects do not disappear once an inmate is released from solitary confinement. Even after release back into a community setting, a former inmate faces an elevated risk of suicide, drug overdose, heart attack, and stroke.
The legislature recognizes that in 2019, twenty-eight states introduced legislation to ban or restrict the use of solitary confinement. Further, twelve states have passed reform legislation: Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those enacted by Connecticut and Washington, reflect tentative and piecemeal approaches to change. However, most of the new laws represent significant reforms to existing practices and thus have the potential to facilitate more humane and effective practices in prisons and jails.
The legislature further finds that the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as "the Nelson Mandela Rules" to honor the legacy of the late South African president, are based upon an obligation to treat all prisoners with respect for their inherent dignity and value as human beings. The rules prohibit torture and other forms of maltreatment. Notably, the rules also restrict the use of solitary confinement as a measure of last resort, to be used only in exceptional circumstances. Moreover, the rules prohibit the use of solitary confinement for a time period exceeding fifteen consecutive days and characterize this disciplinary sanction as a form of "torture or other cruel, inhuman or degrading treatment or punishment". Indeed, Nelson Mandela said he found solitary confinement to be "the most forbidding aspect of prison life" and stated that "[t]here was no end and no beginning; there's only one's own mind, which can begin to play tricks."
Accordingly, the purpose of this Act is to:
(1) Prohibit indefinite solitary confinement;
(2) Prohibit prolonged solitary confinement;
(3) Prohibit placement of an inmate in a dark or constantly lit cell;
(4) Restrict the use of solitary confinement in state‑operated and state-contracted correctional facilities, with certain specified exceptions;
(5) Prohibit inmates incarcerated or detained in state‑operated or state-contracted correctional facilities from being placed in solitary confinement, unless there is reasonable cause to believe that an inmate or other persons would be at substantial risk of immediate serious harm as evidenced by recent threats or conduct, and that a less restrictive intervention would be insufficient to reduce this risk; and
(6) Prohibit the use of solitary confinement for a member of a vulnerable population.
SECTION 2. Chapter 353, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:
"§353- Solitary confinement; restrictions on use; policies and procedures. (a) The use of solitary confinement in correctional facilities shall be restricted as follows:
(1) Except as otherwise provided in subsection (d), an inmate shall not be placed in solitary confinement unless there is reasonable cause to believe that the inmate would create a substantial risk of immediate serious harm to the inmate's self or another, as evidenced by recent threats or conduct, and that a less restrictive intervention would be insufficient to reduce this risk; provided that the correctional facility shall bear the burden of establishing the foregoing by clear and convincing evidence;
(2) Except as otherwise provided in subsection (d), an inmate shall not be placed in solitary confinement for non-disciplinary reasons;
(3) Except as otherwise provided in subsection (d), an inmate shall not be placed in solitary confinement before receiving a personal and comprehensive medical and mental health examination conducted by a clinician;
(4) Except as otherwise provided in subsection (d), an inmate shall only be held in solitary confinement pursuant to initial procedures and reviews that provide timely, fair, and meaningful opportunities for the inmate to contest the confinement. These procedures and reviews shall include the right to:
(A) An initial hearing held within seventy-two hours of placement in solitary confinement and a review every fifteen days thereafter, in the absence of exceptional circumstances, unavoidable delays, or reasonable postponements;
(B) Appear at the hearing;
(C) Be represented at the hearing;
(D) An independent hearing officer; and
(E) Receive a written statement of reasons for the decision made at the hearing;
(5) Except as otherwise provided in subsection (d), the final decision to place an inmate in solitary confinement shall be made by the warden or the warden's designee;
(6) Except as otherwise provided in this subsection or in subsection (d), an inmate shall not be placed or held in solitary confinement if the warden or the warden's designee determines that the inmate no longer meets the criteria for the confinement;
(7) A clinician shall evaluate on a daily basis each inmate who has been placed in solitary confinement, in a confidential setting outside of the inmate's cell whenever possible, to determine whether the inmate is a member of a vulnerable population. Except as otherwise provided in subsection (d), an inmate determined to be a member of a vulnerable population shall be immediately removed from solitary confinement and moved to an appropriate placement elsewhere;
(8) A disciplinary sanction of solitary confinement imposed on an inmate who is subsequently removed from solitary confinement pursuant to this subsection shall be deemed completed;
(9) Except as otherwise provided in subsection (d), during a facility-wide lockdown, an inmate shall not be placed in solitary confinement for more than fifteen consecutive days, or for more than twenty days total during any sixty-day period;
(10) Cells or other holding or living space used for solitary confinement shall be properly ventilated, lit, temperature-controlled, clean, and equipped with properly functioning sanitary fixtures;
(11) A correctional facility shall maximize the amount of time spent outside of the cell by an inmate held in solitary confinement by providing the inmate with access to recreation, education, clinically appropriate treatment therapies, skill-building activities, and social interaction with staff and other inmates, as appropriate;
(12) An inmate held in solitary confinement shall not be denied access to food, water, or any other necessity;
(13) An inmate held in solitary confinement shall not be denied access to appropriate medical care, including emergency medical care; and
(14) An inmate shall not be released directly from solitary confinement to the community during the final one hundred eighty days of the inmate's term of incarceration, unless necessary for the safety of the inmate, staff, other inmates, or the public.
(b) Except as otherwise provided in subsection (d), an inmate who is a member of a vulnerable population shall not be placed in solitary confinement; provided that:
(1) An inmate who is a member of a vulnerable population because the inmate is twenty-one years of age or younger, has a disability based on mental illness, or has a developmental disability:
(A) Shall not be subject to discipline for refusing treatment or medication, or for engaging in self‑harm or related conduct or threatening to do so; and
(B) Shall be screened by a correctional facility clinician or the appropriate screening service pursuant to the Hawaii administrative rules and, if found to meet the criteria for civil commitment, shall be placed in a specialized unit designated by the director or deputy director of the department, or civilly committed to the least restrictive appropriate short-term care or psychiatric facility designated by the department of health; but only if the inmate would otherwise have been placed in solitary confinement; and
(2) An inmate who is a member of a vulnerable population because the inmate is sixty years of age or older; has a serious medical condition that cannot be effectively treated while the inmate is in solitary confinement; or is pregnant, in the postpartum period, or recently suffered a miscarriage or terminated a pregnancy, shall alternately be placed in an appropriate medical or other unit designated by the director, but only if the inmate would otherwise have been placed in solitary confinement.
(c) An inmate shall not be placed in solitary confinement or in any other cell or other holding or living space, in any facility, whether alone or with one or more other inmates, if there is reasonable cause to believe that there exists a risk of harm or harassment, intimidation, extortion, or other physical or emotional abuse to the inmate or to another inmate in that placement.
(d) The use of solitary confinement in correctional facilities shall be permitted only under the following limited circumstances:
(1) The warden or the warden's designee determines that a facility-wide lockdown is necessary to ensure the safety of inmates in the facility, until the facility administrator determines that the threat to inmate safety no longer exists. The warden or the warden's designee shall document the specific reasons that any facility-wide lockdown was necessary for more than twenty-four hours, and the specific reasons that less restrictive interventions were insufficient to accomplish the facility's safety goals. Within six hours of a decision to extend a facility-wide lockdown beyond twenty-four hours, the director or deputy director of the department shall publish the foregoing reasons on the department's website and shall provide meaningful notice to the legislature of the reasons for the lockdown;
(2) The warden or the warden's designee determines that an inmate should be placed in emergency confinement; provided that:
(A) An inmate shall not be held in emergency confinement for more than twenty-four hours; and
(B) An inmate placed in emergency confinement shall receive an initial medical and mental health evaluation within six hours and a personal and comprehensive medical and mental health examination conducted by a clinician within twenty-four hours. Reports of these evaluations shall be immediately provided to the warden or the warden's designee;
(3) A physician, based upon the physician's personal examination of an inmate, determines that the inmate should be placed or held in medical isolation; provided that any decision to place or hold an inmate in medical isolation due to a mental health emergency shall be made by a clinician and based upon the clinician's personal examination of the inmate. In any case of medical isolation occurring under this paragraph, a clinical review shall be conducted at least every six hours and as clinically indicated. An inmate in medical isolation pursuant to this paragraph shall be placed in a mental health unit designated by the director or deputy director of the department;
(4) The warden or the warden's designee determines that an inmate should be placed in protective custody; provided that:
(A) An inmate may be placed in voluntary protective custody only when the inmate has provided voluntary, informed, and written consent and there is reasonable cause to believe that confinement is necessary to prevent reasonably foreseeable harm. When an inmate makes a voluntary, informed, and written request to be placed in protective custody and the request is denied, the correctional facility shall bear the burden of establishing a basis for denying the request;
(B) An inmate may be placed in involuntary protective custody only when the correctional facility is able to establish by clear and convincing evidence that confinement is necessary to prevent reasonably foreseeable harm and that a less restrictive intervention would be insufficient to prevent the harm;
(C) An inmate placed in protective custody shall be provided opportunities for activities, movement, and social interaction, in a manner consistent with ensuring the inmate's safety and the safety of other persons, that are comparable to the opportunities provided to inmates in the facility's general population;
(D) An inmate subject to removal from protective custody shall be provided with a timely, fair, and meaningful opportunity to contest the removal;
(E) An inmate who is currently or may be placed in voluntary protective custody may opt out of that status by providing voluntary, informed, and written refusal of that status; and
(F) Before placing an inmate in protective custody, the warden or the warden's designee shall use a less restrictive intervention, including transfer to the general population of another facility or to a special-purpose housing unit for inmates who face similar threats, unless the inmate poses an extraordinary security risk so great that transferring the inmate would be insufficient to ensure the inmate's safety; and
(5) The warden or the warden's designee determines that an inmate should be placed in solitary confinement pending investigation of an alleged disciplinary offense; provided that:
(A) The inmate's placement in solitary confinement is pursuant to approval granted by the warden or the warden's designee in an emergency situation, or is because the inmate's presence in the facility's general population while the investigation is ongoing poses a danger to the inmate, staff, other inmates, or the public; provided further that the determination of danger shall be based upon a consideration of the seriousness of the inmate's alleged offense, including whether the offense involved violence or escape, or posed a threat to institutional safety by encouraging other persons to engage in misconduct;
(B) An inmate's placement in solitary confinement pending investigation of an alleged disciplinary offense shall be reviewed within twenty-four hours by a supervisory-level employee who was not involved in the initial placement decision; and
(C) An inmate who has been placed in solitary confinement pending investigation of an alleged disciplinary offense shall be considered for release to the facility's general population if the inmate demonstrates good behavior while in solitary confinement. If the inmate is found guilty of the disciplinary offense, the inmate's good behavior shall be considered when determining the appropriate penalty for the offense.
(e) No later than July 1, 2024, the department shall have developed written policies and implemented procedures, as necessary and appropriate, to effectuate this section, including:
(1) Establishing less restrictive interventions as alternatives to solitary confinement, including separation from other inmates, transfer to other correctional facilities, and any other sanction not involving solitary confinement that is authorized by the department's policies and procedures; provided that any temporary restrictions on an inmate's privileges or access to resources, including religious services, mail and telephone privileges, visitation by contacts, and outdoor or recreation access, shall be imposed only when necessary to ensure the safety of the inmate or other persons, and shall not restrict the inmate's access to food, basic necessities, or legal assistance;
(2) Requiring periodic training of disciplinary staff and all other staff who interact with inmates held in solitary confinement; provided that the training:
(A) Is developed and conducted with assistance from appropriately trained and qualified professionals;
(B) Clearly communicates the applicable standards for solitary confinement, including the standards set forth in this section; and
(C) Provides information on the identification of developmental disabilities; symptoms of mental illness, including trauma disorders; and methods for responding safely to persons in distress;
(3) Requiring documentation of all decisions, procedures, and reviews of inmates placed in solitary confinement;
(4) Requiring monitoring of compliance with all rules governing cells, units, and other spaces used for solitary confinement;
(5) Requiring the posting of quarterly reports on the department's official website that:
(A) Describe the nature and extent of each correctional facility's use of solitary confinement and include data on the age, sex, gender identity, ethnicity, incidence of mental illness, and type of confinement status for inmates placed in solitary confinement;
(B) Include the inmate population as of the last day of each quarter and a non-duplicative, cumulative count of the number of inmates placed in solitary confinement during the fiscal year;
(C) Include the incidence of emergency confinement, self-harm, suicide, and assault in any solitary confinement unit, as well as explanations for each instance of facility-wide lockdown; and
(D) Exclude personally identifiable information regarding any inmate; and
(6) Updating the department's corrections administration policy and procedures manual, as necessary and appropriate, to comply with the provisions of this section, including the requirement to use appropriate alternatives to solitary confinement for inmates who are members of a vulnerable population.
(f) As used in this section:
"Correctional facility" means a state prison, other penal institution, or an institution or facility designated by the department as a place of confinement under this chapter. The term includes community correctional centers, high-security correctional facilities, temporary correctional facilities, in-state correctional facilities, state-contracted correctional facilities operated by private entities, and jails maintained by county police departments.
"Member of a vulnerable population" means any inmate who:
(1) Is twenty-one years of age or younger;
(2) Is sixty years of age or older;
(3) Has a physical or mental disability, a history of psychiatric hospitalization, or recently exhibited conduct, including serious self-mutilation, that indicates the need for further observation or evaluation to determine the presence of mental illness;
(4) Has a developmental disability, as defined in section 333F-1;
(5) Has a serious medical condition that cannot be effectively treated while the inmate is in solitary confinement;
(6) Is pregnant, in the postpartum period, or recently suffered a miscarriage or terminated a pregnancy;
(7) Has a significant auditory or visual impairment; or
(8) Is perceived to be lesbian, gay, bisexual, transgender, or intersex.
"Solitary confinement" occurs when all of the following conditions are present:
(1) An inmate is confined in a correctional facility pursuant to disciplinary, administrative, protective, investigative, medical, or other purposes;
(2) The confinement occurs in a cell or similarly physically restrictive holding or living space, whether alone or with one or more other inmates, for twenty hours or more per day; and
(3) The inmate's activities, movements, and social
interactions are severely restricted."
SECTION 3. No later than April 1, 2024, the department of corrections and rehabilitation shall:
(1) Develop written policies and implement procedures, as necessary and appropriate, for the review of inmates placed in solitary confinement;
(2) Initiate a review of each inmate placed in solitary confinement during the immediately preceding fiscal year to determine whether the placement would be appropriate in light of the requirements of section 353- , Hawaii Revised Statutes; and
(3) Develop a plan for providing step-down and transitional units, programs, and staffing patterns to accommodate inmates currently placed in solitary confinement, inmates who may prospectively be placed in solitary confinement, and inmates who receive an intermediate sanction in lieu of being placed in solitary confinement; provided that staffing patterns for correctional and program staff are set at levels necessary to ensure the safety of staff and inmates pursuant to the requirements of this Act.
SECTION 4. No later than forty days prior to the convening of the regular session of 2025, the department of corrections and rehabilitation shall submit to the legislature a status report of the department's progress toward full compliance with this Act, along with draft copies of written policies and procedures undertaken pursuant to this Act.
SECTION 5. New statutory material is underscored.
SECTION 6. This Act shall take effect upon its approval; provided that section 2 shall take effect on July 1, 2024.
Department of Corrections and Rehabilitation; Correctional Facilities; Inmates; Solitary Confinement; Restrictions; Vulnerable Populations; Report
Restricts the use of solitary confinement in state-operated and state-contracted correctional facilities, with certain specified exceptions. Requires the Department of Corrections and Rehabilitation to use appropriate alternatives to solitary confinement for inmates who are members of a vulnerable population. Requires the department to develop written policies and implement procedures by 7/1/2024. Defines "member of a vulnerable population." Requires a report to the Legislature.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.