Rulemaking

Restrictive Housing Rulemaking

On October 29, 2019, the New York City Board of Correction published and introduced, proposed Rule. The new rule is designed to ensure that people in the Department of Correction's custody: (1) are placed in restrictive housing in accordance with due process and procedural justice principles; and (2) are confined in the least restrictive setting and for the least amount of time necessary to address the specific reasons for their placement and to ensure their own safety as well as the safety of staff and other people in custody. The draft rule builds on groundbreaking reforms in 2015 which recognized the overuse of punitive segregation in NYC and the negative impact it has on the mental and physical health of people placed in it.

On Thursday, October 31, 2019, the Board voted to formally propose the Rule (press release). The Rule is subject to the City Administrative Procedure Act (CAPA) rulemaking process. The Board's rulemaking process follows CAPA and includes the following steps:

  1. Publish and introduce proposed Rule on the Board's website and send to Board's interested parties list (if you would like the Board to add you to its interested parties list, email boc@boc.nyc.gov).

  2. Vote on whether to formally propose the Rule. At five (5) members of the nine (9)-person Board are required to vote in favor of formally proposing the Rule.
  1. Notify the public of the Proposed rule. This includes publishing the rule in the City Record.
    1. The Board has worked with DOC to post notices of proposed rule and public hearing in each jail's staff locker room, law library, visit area, and clinic (posted notice for people in custody; posted notice for staff).  The Department will keep a copy of the proposed rule package in each jail's law library and Deputy Warden of Administration office. Additionally, if a person in custody calls the Board and requests a copy of the proposed rule package, the Board will mail the person a copy.  Finally, the Board has created a voicemail box so that anyone, including people in custody, can call and leave a comment via voicemail.  The phone number is 212-669-7900.

  2. Hold a public hearing and accept written comment during a public comment period. The Board is holding two public hearing: 9:00 AM on December 2, 2019 and 5:30PM on December 16, 2019.  Both public hearings will be held at 125 Worth Street, Second Floor Auditorium, New York, 10013. Anyone who wants to comment on the proposed Rule at apublic hearing must sign up to speak. You can sign up before ahearing by calling 212-669-7900. You can also sign up in the hearing room on the day of the hearing. You can speak for up to four (4) minutes.

    You must inform the Board if you need a reasonable accommodation of a disability at the hearing. Please also inform us if you need a language interpreter. You can inform us by mail at 1 Centre Street, Room 2213, New York, NY 10007, by telephone at 212-669-7900, or by email at boc@boc.nyc.gov. Please inform us by the close of business on November 30, 2019 so that we have sufficient time to arrange the accommodation.

    The Board will accept written comments until the close of business on January 3, 2020 (the Board extended the public comment period; the last day was previously December 2, 2019). You may send written comments by mail, email, fax at 212-669-7980 or via the NYC Rules website.

    During and after the public comment period, there will be opportunity to make further amendments to the rules, as necessary.

  3. Publish and introduce final Rule on the Board's website and send to the Board's interested parties list.

  4. Vote on whether to approve the final Rule. Five (5) members of the nine (9)-member Board are required to approve the final Rule.

  5. Publish the final Rule on the NYC Rules website, the City Record, and submit to the City Council.

  6. The final Rule is adopted and becomes law 30 days after its publication in the City Record.

Key Provisions of Proposed Rule:

  • Maximum PSEG sentence reduced from 30 to 15 days (other than for serious assault on staff)
  • Maximum PSEG sentence for serious assault on staff remains at 60 days, but with ability to earn reduction in sentence for good behavior
  • Daily lock-out in PSEG increased from one (1) to four (4) hours
  • DOC must place person in PSEG within 30 days of guilty adjudication or else the person cannot be placed there at a later time
  • Elimination of automatic $25 fine for guilty infractions
  • Elimination of routine use of restraints, including restraint desks, by February 2022
  • Daily lock-out for young adults in restrictive housing increased from seven (7) to ten (10) hours
  • Expanded procedural due process protections for placement in structurally restrictive housing (a housing unit with a physical design that permits people confined in the unit to congregate with only one or two other people in custody)
  • Data reporting to monitor and track compliance with the proposed rules and the core principles on which they are based

Background:

The Board's rulemaking process commenced in 2017 and included discussions with 30 organizations and individuals, including the local defense bar, criminal justice advocates, national criminal justice organizations and oversight entities, COBA, correctional experts, academics, and City partners. The Board met extensively with the Department of Correction and Correctional Health Services, the two agencies responsible for management of jail operations and health and mental health services respectively, and received comments from Council Speaker Cory Johnson, Criminal Justice Committee Chair Keith Powers, and the Council's Progressive Caucus. This comprehensive effort also entailed a literature review and examination of DOC directives, policies, and reports; Board staff research, analyses, and reports; model restrictive housing standards at the national and international level; and a review of restrictive housing in jails and prisons nationwide.

Written Comments