Criminal Justice Reform Act (CJRA) Reforms and Regulations

Definition of Restrictive Housing (RH)

The CJRA repealed Chapter 127, Sections 40 and 41 of the Massachusetts General Laws, removing the outdated term “isolation unit,” and amended Chapter 127 Section 1 to add the term “restrictive housing”, defined as “a housing placement where a prisoner is confined to a cell for more than 22 hours per day; provided, however, that observation for mental health evaluation shall not be considered restrictive housing.”

Standards of minimum humane conditions

The CJRA created minimum conditions protections for restrictive housing. Mass. Gen. Laws. Ch. 127 s. 39(b) now requires that individuals in restrictive housing be provided with:

• Meals commensurate with the general population
• Showers at least three days a week
• Rights of visitation and telephone access that may only be diminished for up to 15 days for disciplinary purposes
• Access to reading and writing materials
• Access to radio or television
• Access to mental and psychiatric examinations and treatment under the supervision of the Department of Mental Health
• Access to canteen and property commensurate with the general population
• Access to disability accommodations commensurate with the general population

Out of cell activities and outplacements

The CJRA  also requires the commissioner to promulgate regulations that maximize out-of-cell activities and outplacements from restrictive housing (Mass. Gen. Laws ch. 127 s. 39B)

Access to vocational, education, and rehabilitative programs 

The CJRA requires that individuals held in restrictive housing for more than 60 days must have access to vocational, educational, and rehabilitative programming to the maximum extent possible and shall receive good time (Mass. Gen. Laws ch. 127 s. 39E).

Standard for implementing RH and review process

The CJRA amended Mass. Gen. Laws ch. 127 s. 39 to ensure that individuals may only be held in restrictive housing for purposes of discipline or where retention in the general population would pose an unacceptable risk to the safety of others, damage/destruction of property, or to the operation of the facility. Mass. Gen. Laws ch. 127 s. 1 defined a “placement review” where a multidisciplinary team must review a person in restrictive housing to determine whether restrictive housing remains necessary to reasonably manage risks of harm. The intention is that regardless of the person’s disciplinary sanction or reason for their original placement in restrictive housing, they should return to the general population if they no longer pose an unacceptable risk. Mass. Gen. Laws ch. 127 s. 39B sets out placement review requirements, including appropriate intervals for the reviews and procedural protections.

Vulnerable populations protections

The CJRA amended Mass. Gen. Laws ch. 127 s. 1 to expand the definition of “serious mental illness” (SMI) from its previously over-narrow definition. It amended Mass. Gen. Laws ch. 127 s. 39A to ensure that persons meeting the definition of serious mental illness would be diverted from restrictive housing to a secure treatment unit as quickly as possible. Section 39A further excludes individuals separated from the general population for their own protection and individuals who are pregnant from restrictive housing and provides that individuals may not be placed in restrictive housing because they are LGBTQI. It requires the DOC to promulgate regulations regarding the placement of persons with permanent physical disabilities in restrictive housing.

Training for correctional staff

The CJRA requires the DOC commissioner to consult with the sheriffs and the department of mental health and promulgate regulations for training and qualifications of correctional staff deployed to restrictive housing (Mass. Gen. Laws ch. 127 s. 39C).

Oversight

The CJRA established a “Restrictive Housing Oversight Committee” (RHOC), consisting of a mix of corrections officials, state agencies, and community advocates, including PLS (Mass. Gen. Laws ch. 127 s. 39G). The Committee is tasked with determining the impacts of restrictive housing on individuals, violence, recidivism, costs, and self-harm. The Committee is also responsible for making recommendations regarding the use of restrictive housing in the Commonwealth. The committee is entitled to access prisons, prison staff, and incarcerated individuals to carry out its duties. Section 39D requires that the commissioner regularly publish and report to the RHOC comprehensive data regarding the use of solitary confinement.

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DOC Quarterly Report on Restrictive Housing (Q1 2019)

Section 39D of Chapter 69 of the Acts of 2018 directs the Commissioner of Correction to report quarterly as to the status of restrictive housing in state facilities. The report includes the following topics:

• the number of people found to be seriously mentally ill and the number of such people held for more than 30 days
• the number of people who have committed suicide or committed non‐lethal acts of self‐harm
• the number of people according to the reason for their restrictive housing
• as to people in disciplinary restrictive housing:
  • a listing of people with names redacted, including an anonymized identification number that shall be consistent across reports
  • Demographic information including age, race, gender, and ethnicity
  • whether the person has an open mental health case
  • the date of the person’s commitment to discipline
  • the length of the person’s term
  • a summary of the reason for the person’s commitment
• the number of placement reviews conducted (pursuant to clause (iv) and (v) of subsection (a) of section 39B) and the number of people released from restrictive housing as a result of such placement reviews
• the length of original assignment to and total time served in disciplinary restrictive housing for each person released from disciplinary restrictive housing as a result of a placement review
• the count of people released to the community directly or within 30 days of release from restrictive housing
• the known disabilities of every person who was placed in restrictive housing during the previous three months
• the number of mental health professionals who work directly with people in restrictive housing
• the number of transfers to outside hospitals directly from restrictive housing

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Restrictive Housing Reviews Under 103 CMR 423: Restrictive Housing

Monday/Wednesday/Friday (M/W/F) reviews: 

These reviews are for those in non-disciplinary restrictive housing (RH) (previously called administrative segregation).  They take place three times per week and are conducted by the Placement Review Committee (PRC). They determine: 

1. whether the RH placement is expected to last more than 30 days
2. whether the person should be kept in restrictive housing or released to a Secure Adjustment Unit or another unit

Once the PRC determines that placement in RH will likely last more than 30 days, then within 15 days, it must serve the person with written behavior standards and program participation goals that will increase the person’s chance of release from restrictive housing.

Enhanced M/W/F reviews:  

Individuals with SMI, and those determined to require protection, shall receive an enhanced M/W/F review conducted by the PRC.  At each review, the person shall be: 

1. provided with 24 hours written notice; 
2. provided the opportunity to participate in writing; 
3. provided a written statement as to the evidence relied on and the reason for continued RH placement if the person isn’t released from restrictive housing;
4. advised in writing of behavior standards and program participation goals that will increase the person’s chance of release from restrictive housing.

15-day reviews: 

Individuals awaiting the adjudication of disciplinary charges shall be reviewed by the PRC every 15 days.  At each review, the person shall be: 

1. provided with 24-hour written notice;
2. provided the opportunity to participate in writing; 
3. provided a written statement as to the evidence relied on and the reason for continued RH placement if the person isn’t released from restrictive housing;
4. advised in writing of behavior standards and program participation goals that will increase the person’s chance of release from restrictive housing.

30-day CPO reviews: 

Within 30 days of placement in restrictive housing, individuals shall receive a review conducted by their CPO.  They shall receive:

1. 48-hour written notice stating the reason for restrictive housing placement and the nature of the threat posed; 
2. the opportunity to participate in person or in writing; 
3. a  recommendation which, if for continued RH placement, includes a written statement of the evidence relied upon and the reason for continued RH placement; 
4. written behavior standards and program participation goals that would increase the person’s chance of release from restrictive housing.  

This review should not be held cell-front.  Individuals have the right to submit a verbal and/or written statement to contest restrictive housing placement.  The individual may submit a written appeal within five days of receiving the CPO’s written recommendation. Within five days of the close of the appeal period, the Superintendent or designee shall make the final decision and serve it in writing to the individual.  The decision shall include the reasons for the placement, including a description of the underlying basis and an explanation of why returning to population would pose an unacceptable risk.

90-day reviews: 

Within 90 days of placement in restrictive housing and every 90 days thereafter, the individual shall receive a placement review conducted by the PRC. Starting with the second such review (within 180 days), the individual may request an audio recording. In all other respects, including notice, opportunity to participate, and written decision, the procedures are the same as for the 30-day review. The appeal must be done within five days of the PRC’s written recommendation and is otherwise the same as in the 30-day review.

DDU reviews:  

Those serving DDU sentences are entitled to reviews within 180 days after the effective date of the DDU sanction (i.e., the date that the Deputy Commissioner of the Prison Division issues written authorization for the DDU sanction) and every ninety (90) days thereafter. Under the CJRA, these reviews should be the same as the 90-day reviews for non-disciplinary RH described above.  However, the DOC has taken the position that the CJRA does not require in-person hearings with the PRC. PLS disagrees with this interpretation. 

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