Statement of Prisoners’ Legal Services on Falcon Report
June 30, 2021
Prisoners’ Legal Services welcomes the news that the Massachusetts Department of Correction (DOC) plans to eliminate restrictive housing and the Departmental Disciplinary Unit (DDU), where incarcerated people are currently held in isolation for up to ten years per disciplinary offense. These practices have long been a stain on the Commonwealth. PLS, alongside incarcerated people, formerly incarcerated people, and community allies, have fought for decades to end these torturous conditions.
We take this opportunity to highlight some particularly important aspects of the report authored by the Falcon Group and to make recommendations for a path forward that will ensure a brighter future for the Commonwealth and incarcerated individuals.
The Falcon Group Critique
The report acknowledges that restrictive housing and the DDU do not address the root causes that lead people into the disciplinary system, but instead serve primarily to incapacitate and punish. The DDU, in particular, has an “innately punitive culture” that “minimizes the interests of rehabilitation or positive behavior change.” The DOC has long claimed that two units within the DDU building, the Limited Privileges Unit (LPU- long term administrative segregation), and the “SMI” unit (for people with serious mental illness) do not qualify as restrictive housing because they are offered three hours of out of cell time a day. However, the Falcon group found that these units are “permeated by the punitive culture of the DDU more broadly” and “meet the definition of restrictive housing.” Because the DOC has not considered these units to be restrictive housing, they have not been afforded any of the conditions, due process, or oversight protections provided by the Criminal Justice Reform Act.
The Falcon group also noted that although the Criminal Justice Reform Act requires that people who are awaiting disciplinary hearings in restrictive housing should be reviewed every 15 days to determine if they can be returned to general population, in practice many individuals “remain in Restrictive Housing Units for months pending investigation and hearings, resulting in undefined and unknown periods of time in these conditions of confinement.” Further, “Inmates who navigate the DDU referral process, as well as those professionals who advocate for them during that process, experience a lack of procedural justice in the investigations and hearings.”
This report makes clear what we have been advocating for a long time: the DDU must end, restrictive housing is unnecessary, additional out of cell time is itself not a panacea, programming must be meaningful, and due process on paper without due process in practice leads to indefinite terms in isolation.
Falcon Group Recommendations and PLS’ Implementation concerns
The Falcon Group recommends the dissolution of the DDU and the elimination of all Restrictive Housing “as currently defined.” We welcome DOC’s pledge to end both practices in favor of a new model that will address the underlying causes of behaviors that led to disciplinary process, instead of focusing on punishment and isolation. The DOC is in the beginning stages of shaping its responsive plan and has stated that it intends to include the Restrictive Housing Oversight Committee (RHOC) in the process. We agree that continued oversight will be necessary, and set forth below some concerns. PLS calls on the DOC to bring to the table as active and full participants additional stakeholders, particularly formerly and currently incarcerated people, whose lived experience must inform changes as they unfold.
- Newly created units must not expand the use of segregated confinement or continue the status quo under a new name. The Falcon Group recommends the creation of new units similar to the existing Secure Adjustment unit (SAU), which allows more than 2 hours out of cell per day but can be highly restrictive. Such units should be used for a short, finite period of time as a last resort when all means of keeping someone safely in the general population have been exhausted. Due process protections must be provided and conditions should be as close to the general population as possible. Many people currently held in restrictive housing and in the SAU can safely be held in the general population.
Any segregation system must narrowly define the reasons for which a person may be placed there, maximize out of cell time, ensure a meaningful pathway out with firm time limitations, provide access to appropriate and non-coercive treatment and programming, and provide due process protections. A helpful model can be found in the recently passed HALT bill in New York. HALT ensures 7 hours out of cell per day in segregation, narrowly defines the offenses for which a person may be subject to segregation, excludes vulnerable populations, ensures meaningful reviews with access to legal representation, and provides a maximum term for segregated confinement.
- Treatment and programming must be meaningful, and should be expanded in the general population. We welcome the emphasis on trauma-responsive programming, SUD treatment, and other programming to address the causes of behavioral problems. However, it would be a grave mistake to concentrate this in restrictive units only. A root cause of over-reliance on restrictive housing is the lack of opportunity for meaningful programs, education and employment in the general population, and shifting resources in this direction is imperative.
To the extent that new units may be created for people with particular program needs, these should be general population units. Separating people from the general population and placing them in more restrictive conditions is harmful and disruptive to their wellbeing, often resulting in loss of community connections, jobs, programming, property, and dignity.
- Pending reform legislation is still necessary and CJRA protections must be applied to all segregated confinement. We have legislation currently pending here in Massachusetts that would take important strides to ensure improvements in the system, including applying Criminal Justice Reform Act protections to all segregated confinement, ending DDU sentences, and improving mental health watch conditions. We urge that lawmakers support An Act to provide criminal justice reform protections to all prisoners in segregated confinement (S.1578/H.2504, Sen. Eldridge, Rep. Miranda) and An Act to ensure the constitutional rights and human dignity of prisoners on mental health watch (S.1283/H.2089, Sen. Eldridge, Rep. Fluker Oakley).
Right now, restrictive units with more than two hours per day out of cell are not subject to any of the protections, oversight, or transparency mechanisms provided by the CJRA. CJRA protections and RHOC oversight should be immediately expanded to any segregated confinement, such as anticipated in the DOC’s plans.
- Conditions at Souza Baranowski Correctional Center must be addressed. We also note that the DOC has stated that it intends to shift to a non-punitive model. To that end, it must immediately remedy the supermaximum conditions at Souza Baranowski Correctional Center (SBCC). Right now, half of the entire prison operates as a punishment unit, just barely outside the confines of the CJRA protections. Incarcerated people on the North side of SBCC have no contact visits, no access to the law library, cannot go to the gym or yard, cannot participate in any group religious services, and have no access to validated programming. They receive a mere 30 minutes extra out of cell daily than do prisoners in traditional restrictive housing units.
- We can’t afford delay. We hope that DOC will act without any undue delay to end the restrictive housing, quasi-restrictive housing, and DDU practices that have already gone on too long, and in violation of many of the provisions of the CJRA. This is an opportunity to shift its culture from one that is focused on punishment, segregation, deprivation and control, to one that is focused on supporting the rehabilitation, humanity and dignity of the people in its custody, over 90% of whom will return to the community. Though the current plan focuses on individual treatment plans and programming, we hope that DOC will take this opportunity to also examine and reform the conditions it has cultivated that lead to antisocial and harmful outcomes, such as needless restrictions on visitation and mail, exorbitant costs for communication, systemic and unaccountable brutality, and too few pathways towards early release.
Finally, as mentioned above, a collaborative approach is necessary to ensure meaningful progress and a measurable positive impact for those in custody. It would be a mistake not to acknowledge that these changes would not be afoot were it not for the incessant advocacy of so many, particularly people held in prisons and jails, for far too long. We hope for a collaborative and transparent approach moving forward so that changes are implemented as expediently as possible and have the positive impact so desperately needed.