CCS-24-11-00005-A Entrance to a Correctional Facility, Visitation, Disciplinary Hearing, Superintendent Hearing, Minimum Provisions

3/28/12 N.Y. St. Reg. CCS-24-11-00005-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 13

March 28, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION

NOTICE OF ADOPTION

 

I.D No. CCS-24-11-00005-A

Filing No. 220

Filing Date. Mar. 13, 2012

Effective Date. Oct. 01, 2012

Entrance to a Correctional Facility, Visitation, Disciplinary Hearing, Superintendent Hearing, Minimum Provisions

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Part 200; amendment of sections 253.7, 254.7 and 1704.7; and addition of new Parts 200 and 201 to Title 7 NYCRR.

Statutory authority:

Correction Law, sections 112, 137, 138 and 146

Subject:

Entrance to a Correctional Facility, Visitation, Disciplinary Hearing, Superintendent Hearing, Minimum Provisions.

Purpose:

To amend policies for the DOCCS Inmate Visitor Program and standards of inmate behavior.

Substance of final rule:

The Department of Corrections and Community Supervision repeals Part 200 of Title 7 NYCRR and replaces it with a new Part 200 and adds a new Part 201 and amends Sections 253.7, 254.7, and 1704.7.

Part 200, formerly titled Visitation, which set forth the guidelines for the operation of the Department's visitor program, has been repealed and replaced by Part 200 Entrance to a Correctional Facility and Part 201 Visitation.

Part 200 Entrance to a Correctional Facility is added to provide the rules for persons, other than facility employees, seeking to enter a correctional facility. This sets forth policy, requirements and restrictions for both those seeking entrance and the staff tasked with ensuring the safety and the security of the facility.

200.1 Identification. This section defines and clarifies the acceptable forms of identification required for each person, including visitors and other persons not employed at the facility, seeking entrance to a correctional facility. Under the proposed rules, photographic identification will be required of all adult visitors. Failure to produce adequate identification shall result in the denial of entry.

This section also expands on the required procedures that, upon entering the gate area, visitors and other persons not employed at the facility are required to follow. It provides that each visitor is required to enter and leave by the same gate.

200.2 Search. This section provides that all persons entering a correctional facility are subject to search as a condition of entrance and that any visitor who refuses to comply with any required search procedure shall not be permitted entrance to that facility. This section sets forth the procedures for each type of search that may be required and establishes the effect of a visitor's failure to successfully pass those searches.

The justification and authorization for a consensual strip search of a visitor is outlined. The staff's professional and sensitive conduct during the search is emphasized. A strip search must be reported as an unusual incident. A visitor's refusal of a strip search will result in the denial of entry, but will not adversely impact future visits to the facility.

200.3 Unauthorized item/contraband. This section provides the department's detailed definition of contraband including the types of contraband, the discovery of which will result in confiscation and the contact of law enforcement. A list of items that are prohibited inside a correctional facility and instruction to visitors for declaring and storing such is provided.

Part 201 Visitation is added to provide a uniform manner of the operation of the inmate visitor program for visitors admitted to the facility, inmates participating in and department staff supervising the inmate visitor program. Visiting rules, including the types of misconduct and associated penalties, procedures for the imposition of visiting sanctions and procedures for appealing such sanctions are set forth.

201.1 Purpose. This section provides that appropriate participation in the Department of Corrections and Community Supervision inmate visiting program provides inmates under custody the opportunity to maintain relationships with persons from the outside in order to offer emotional support in adjusting to the prison environment and to promote better community adjustment upon release.

201.2 Procedures. This section outlines the procedures and limitations for the inmate visiting program, including procedures for first-time visitors, the visitor record, cross-visiting and visitors under 18 years of age.

This section also sets forth restrictions for persons on probation or parole, inmates on temporary release, persons with pending or past criminal proceedings, former inmates and former employees who must have prior permission to be allowed to visit. This section also addresses visits to hospitalized inmates.

In addition, this section provides that no inmate is to be visited against his or her will. This section also includes an overview of visiting times established for visiting at maximum, medium, minimum, and work release facilities.

201.3 Guidelines. This section provides that inmates and their authorized visitors abide by the established visiting rules and regulations, posted facility rules and the instructions given by staff. This section sets forth rules including procedures for leaving the visiting room, the exchange of items, leaving packages for the inmate, consumption of food, using lavatories, unacceptable attire and acceptable physical contact during visits. The rules regarding unacceptable attire have been expanded for clarification purposes and to stress that clothing containing metal may cause metal detectors to alert.

201.4 Termination, term of suspension and indefinite suspension. This section provides that a Superintendent may deny, limit, suspend for a term or indefinitely suspend the visitation privileges of any visitor if the Superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security and good order of the facility. It is noted that a loss of visiting privileges may be imposed for an inmate pursuant to the procedures for implementing the standards of inmate behavior under Chapter V of Title 7.

This section provides the standards and the procedures that must be followed by facility staff to enforce visiting rules and for the termination of a visit. The Superintendent is authorized to limit either an inmate or a visitor to non-contact visiting as an alternative to a term of suspension or indefinite suspension of all visiting privileges. Procedures for the imposition of a term of suspension or indefinite suspension are provided. The types and effects of those penalties are outlined, as well as the procedures for notifying the visitors and inmates of the imposition of a visiting sanction and of the available review mechanism. When a visitor is subject to a suspension for a term of less than six months, he or she may appeal in writing to the Commissioner within 60 days and a written decision shall be issued within 45 days of receipt of the appeal. When a visitor is subject to a suspension for a term of over six months or an indefinite suspension, he or she may appeal in writing or by requesting a hearing. This section sets forth the types and effects of visiting penalties and contains a chart detailing types of misconduct, the initial response following an incident of misconduct and the maximum penalties authorized for each offense. A visiting penalty imposed with respect to the visiting privileges of any visitor applies at all Department facilities to all inmates visited. A visiting penalty also precludes participation in the family reunion and special events programs.

201.5 Visitor appeal and hearings. This section outlines the process to be followed when a visitor requests a hearing to appeal from a suspension of visiting privileges for a term of six months or more, including an indefinite suspension of visiting privileges. A hearing officer from outside the correctional facility is appointed and the visitor may be represented by counsel. Procedures for the presentation of witnesses and other evidence are provided, including authority for the hearing officer to determine whether such witnesses or evidence are material, not redundant, and will not jeopardize the safety, security and good order of the facility, or correctional goals. Hearings are electronically recorded and a written decision is to be issued within 60 days of the hearing. The visitor may appeal to the commissioner within 60 days and a written decision is to be issued within 60 days of the filing of an appeal.

201.6 Reconsideration of suspension in excess of two years. This section provides that if a visitor or inmate's visiting privileges have been suspended for a term over two years or indefinitely suspended, that person may request a reconsideration any time after it has been in effect for one year and annually thereafter. The request is made to the Superintendent of the facility housing the inmate to be visited. The Superintendent evaluates the request and advises the visitor and inmate of the result in writing. If the suspension remains in place without modification for five years, the Superintendent's denial or a request for reconsideration may be appealed to the Commissioner's designee in the fifth year and every five years thereafter.

253.7 Dispositions and mandatory surcharge has been revised to clarify that visiting privileges may not be withheld as the result of a disciplinary hearing, commonly referred to as a Tier II hearing in the Department's three-tiered disciplinary system.

254.7 Dispositions and mandatory disciplinary surcharge has been revised to permit the suspension of an inmate's visiting privileges as the result of a Superintendent's hearing, commonly referred to as a Tier III hearing in the Department's three-tiered disciplinary system. Under the proposed rules, an inmate's visiting privileges may be suspended if an inmate is found guilty of misconduct "as a result of the inmate's presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program." Visiting sanctions are available for a wide variety of categories of serious misconduct. Where the conduct is only between the inmate and a visitor, the sanction may be limited to that inmate's ability to receive visits from that visitor. Where the conduct involves other persons, including committing a sexual act where other visitors may witness such misconduct, a visiting sanction would preclude the inmate from all visits for the specified term. Similarly, conduct involving the smuggling of money, alcohol, marijuana, narcotics and other dangerous drugs, weapons, and escape paraphernalia would authorize the hearing officer to suspend visiting privileges with all visitors. Visiting sanctions under this subparagraph fall within the limits set forth in the penalty chart set forth at section 201.4(e).

A number of additional procedural safeguards are included in this rule. Any disposition imposing a loss of visiting privileges with all visitors for two years or more is forwarded to the Superintendent for a discretionary review under section 254.9. Where the sanction is an indefinite suspension of the inmate's visiting privileges, the visiting sanction will be reviewed by the director of special housing and inmate disciplinary program even if the inmate does not appeal. A disciplinary loss of visiting privileges over two years, including an indefinite suspension, is subject to the request for reconsideration procedures set forth at section 201.6. In any case where the hearing officer can impose a loss of visiting privileges; he or she may choose to limit the inmate to noncontact visiting as an alternative.

Section 254.7(a)(1)(iv) provides that an inmate's visiting privileges may be suspended for drug related offenses or for refusing to cooperate with urinalysis testing procedures. These sanctions are authorized without respect to the location of the misconduct. A first offense may be punished by up to 6 months loss of visiting privileges. A second or subsequent offense may be punished by up to one year loss of visiting privileges.

1704.7 Correspondence and visiting has been revised to clarify the limitations on visiting for an inmate confined to a cell or room for more than 30 days, and that further restriction may be imposed under Part 201, Chapter V or section 302.2(i)(1) of Title 7 NYCRR.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 200.1, 200.2, 200.3, 201.3, 201.4 and 201.6.

Text of rule and any required statements and analyses may be obtained from:

Maureen E. Boll, Deputy Commissioner and Counsel, NYS Department of Corrections and Community Supervision, 1220 Washington Avenue - State Campus - Building 2, Albany, NY 12226-2050, [phone], email: [e-mail]

Revised Regulatory Impact Statement

1. Statutory Authority

Correction Law §§ 112, 137, 138, 146. Correction Law § 112 vests the Commissioner of the Department of Corrections and Community Supervision with the superintendence, management and control of the correctional facilities in the department and of the inmates confined therein, and of all matters relating to the government, discipline, policing, contracts and fiscal concerns thereof.

Correction Law § 137(2) provides that the Commissioner shall provide such measures as he or she may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein.

Correction Law § 138 requires that all institutional rules and regulations defining and prohibiting inmates misconduct shall be published and posted, and that such rules shall be specified and precise giving all inmates actual notice of the conduct prohibited, as well as the range of disciplinary sanctions that can be imposed for a violation of each rule.

Correction Law § 146 vests certain officials with the authority to visit correctional facilities at their pleasure and provides that no other person not otherwise authorized by law shall be permitted to enter a correctional facility except by authority of the Commissioner of the Department of Corrections and Community Supervision under such regulations as he or she shall prescribe.

2. Legislative Objective

By vesting the Commissioner with the rulemaking authority, the legislature intended the Commissioner to promulgate such rules and regulations as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein. Visitation greatly enhances an inmate's ability to be successful upon release from custody when the privilege is used to maintain a positive relationship. Appropriately disciplining the few inmates who violate the visiting room rules will enhance the benefits to the many who use their visiting privileges in a positive way.

In accordance with Correction Law §§ 137 and 138, the legislature intended the Commissioner to promulgate rules as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein. The suspension of an inmate's visiting privileges is necessary and appropriate as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State's correctional facilities.

3. Needs and Benefits

Overview

The Commissioner has the authority to prescribe regulations under which persons may be permitted to enter a correctional facility. Correction Law § 146 provides in pertinent part "The following persons shall be authorized to visit at pleasure all correctional facilities: the governor and lieutenant-governor, commissioner of general services, secretary of state, comptroller and attorney-general, members of the commission of correction, members of the legislature, judges of the court of appeals, supreme court and county judges, district attorneys and every minister of the gospel having charge of a congregation in the town wherein any such facility is situated. No other person not otherwise authorized by law shall be permitted to enter a correctional facility except by authority of the commissioner of correction under such regulations as the commissioner shall prescribe."

The Department's current visitation policies are the result of litigation initiated in 1981 in a class action lawsuit. The Court found that the Department's regulations created a liberty interest in visitation and the Department negotiated the Kozlowski consent decree, which was approved in May 1983. The settlement set forth the visiting regulations, which were adopted as Part 200 of Title 7 in February 1986. Those regulations have been in effect since that date with only a few modifications to the penalty provisions in 1989.

The Department successfully sought to vacate the Kozlowski consent decree pursuant to the terms of the Prison Litigation Reform Act (PLRA). In a decision filed November 26, 2001, the Court granted the Department's motion and terminated the consent decree, finding that the consent decree must be terminated, because it did not meet the requirements of the PLRA. The Court based its decision in large part upon the United States Supreme Court's decision in Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989), finding that "the Supreme Court has held that there is no federally created liberty interest in visitation, [and] therefore this consent decree extends beyond what the federal Constitution requires." Kozlowski v. Coughlin, 2001 WL 1506010, *4. The Plaintiffs' filed an appeal to the Second Circuit Court of Appeals, however, that appeal was withdrawn with leave to re-file based on the Department's agreement to promulgate new regulations. Since that time, the Department has conducted research and evaluated numerous variations on the rules before reaching the current proposal.

The United States Supreme Court again addressed visitation in Overton v. Bazzetta, 539 U.S. 126 (2003). This decision was the result of challenges to significant limitations placed on visitation by the Michigan Department of Corrections. The Court recognized that "withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose." Overton, at 134.

For many years, prior to the 2001 ruling terminating the consent decree, the Department sought authority to change the visiting regulations noting that they were inadequate to deal with certain incidents of extreme violence that sometimes occur in the Department's visiting rooms. These visiting rooms may be the only place where the perpetrator has access to the victim, whether the victim is another inmate, a staff member or a visitor. This is also the setting where members of the public, including children, may be forced to witness inmate misconduct or fall victim to it. Further, the Department has sought the authority to use the suspension of an inmate's visiting privileges as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State's correctional facilities.

Despite these problems, the Department continues to recognize the importance of visitation for the vast majority of the inmates committed to the Department and their visitors. Visitation remains the best way for inmates to maintain their relationships with the family and friends. When used to maintain a positive relationship, visitation greatly enhances the inmate's ability to be successful upon release from custody. Appropriately disciplining the few who violate the visiting room rules will only enhance the benefits to the many who use their visiting privileges in a positive way.

Thus, the Department proposes changes to the regulations governing visitation and the standards of inmate behavior that will appropriately balance the above-referenced concerns. These changes permit the exercise of meaningful visitation sanctions against an inmate or visitor who chooses to violate specified rules. Visitation related sanctions may be imposed on an inmate through the existing procedures of a Superintendent's Hearing under the existing disciplinary process as set forth in Chapter V of Title 7. Before a visitation sanction may be imposed, the inmate is entitled to a hearing. If the disciplinary disposition is against the inmate, the inmate will have the right to appeal to the Commissioner's designee to hear such appeals and to challenge the entire disciplinary disposition, including any visitation related sanction.

In those cases where a visitor is issued a decision imposing a visitation sanction, he or she will continue to be entitled to notice of the reason for the sanction, the length of the sanction, copies of the documentation concerning the charges, and an appeal to the Commissioner's designee. Where the sanction is a term of suspension for six months or more, or an indefinite suspension, the visitor will still be entitled to a hearing upon request.

Finally, in a case where either an inmate's or a visitor's visiting privileges are suspended for a term of more than two years or indefinitely suspended, that person will continue to have the ability to request reconsideration of the suspension over two years on an annual basis. If the suspension remains in effect, the denial of a request for reconsideration may be appealed to the Commissioner's designee during the fifth year and every five years thereafter if necessary.

Ultimately, it is the intent of these changes to provide inmates and their visitors with the opportunity to enjoy visitation in a safe environment.

Statement of Changes

Part 200 Entrance to a Correctional Facility is added to provide the rules for persons, other than facility employees, seeking to enter a correctional facility. This sets forth policy, requirements and restrictions for both those seeking entrance and the staff tasked with ensuring their safety and the security of the facility.

200.1 Identification. This section defines and clarifies the acceptable forms of identification required for each person, including visitors and other persons not employed at the facility, seeking entrance to a correctional facility. Under the proposed rules, photographic identification will be required of all adult visitors.

This section also expands on the required procedures that, upon entering the gate area, visitors and other persons not employed at the facility are required to follow. The proposed rules provide procedures for verifying the identification of a person upon entrance to the correctional facility and upon leaving the correctional facility.

200.2 Search. This section provides that all persons entering a correctional facility are subject to search as a condition of entrance and that any visitor who refuses to comply with any required search procedure shall not be permitted entrance to that facility. This section sets forth the procedures for each type of search that may be required and establishes the effect of a visitor's failure to successfully pass those searches.

200.3 Unauthorized item/contraband. This section provides the department's definition of contraband including the types of contraband, the discovery of which will result in confiscation and the contact of law enforcement. A list of items that are prohibited inside a correctional facility and instruction to visitors for declaring and storing such items is provided.

Part 201 Visitation is added to provide a uniform manner of the operation of the inmate visitor program for visitors admitted to the facility, inmates participating in, and department staff supervising the inmate visitor program. Visiting rules, including the types of misconduct and associated penalties detailed, procedures for the imposition of visiting sanctions, and procedures for appealing such sanctions are set forth.

201.1 Purpose. This section provides that appropriate participation in the New York State Department of Corrections and Community Supervision inmate visitor program provides inmate under custody the opportunity to maintain relationships with persons from the outside in order to offer emotional support in adjusting to the prison environment and to promote better community adjustment upon release.

201.2 Procedures. This section is derived from existing section 200.2(a). The proposed rules maintain many of the pre-existing procedures and limitations. Rules for first-time visitors have been simplified. Procedures for visitors under 18 years of age have been revised. The rules governing the potential denial of visiting privileges for persons with a pending or past criminal proceeding have been modified to disqualify a person with charges related to conduct at a correctional facility or involving an inmate, such as promoting prison contraband, from visiting until the charges are resolved.

201.3 Guidelines. This section provides that inmates and their authorized visitors abide by the established visiting rules and regulations, posted facility rules, and the instructions given by staff. This section discusses those rules including leaving the visiting room, the exchange of items, leaving packages for the inmate, consumption of food, using lavatories, acceptable attire, and physical contact during visits.

201.4 Termination, term of suspension and indefinite suspension. This section provides that a superintendent may deny, limit, suspend for a term or indefinitely suspend the visitation privileges of any visitor if the superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility. The standards and the procedures that must be followed by facility staff to implement visiting restrictions and their responsibilities after a penalty is imposed are provided. The types and effects of those penalties are outlined, as well as the procedures for notifying the visitors and inmates of the imposition of a visiting sanction of the available review mechanism. Under the proposed rule, only the visitor may appeal his or her visitation penalty. This section contains a chart detailing types of misconduct and the penalties for a first offense and the maximum penalties for each offense. A reference is also included to the procedures under Chapter V of this Title whereby a loss of visiting privileges may be imposed on an inmate pursuant to the procedures for implementing the standards of inmate behavior.

201.5 Visitor appeal hearings. This section outlines the process to be followed when a visitor requests a hearing to appeal from a suspension of visiting privileges for a term of six months or more, including an indefinite suspension of visiting privileges. The procedures are derived from the existing hearing procedures set forth at section 200.5(c)(2) - (9). Under the proposed rules, a written decision must be issued within 60 days of the hearing.

201.6 Reconsideration of Suspension in Excess of Two Years. This section is derived from existing section 200.5(d). Under this section, any visitor or inmate whose visiting privileges have been suspended for a term over two years or indefinitely suspended may request a reconsideration or modification to the sanction after 1 year and annually thereafter. The request is made to the superintendent of the facility housing the inmate to be visited. The superintendent evaluates the request and advises the visitor and inmate of the result in writing. If the suspension remains in place without modification for five years, the superintendent's denial or a request for reconsideration may be appealed to the Commissioner's designee in the fifth year and every five years thereafter.

Section 253.7 has been revised to clarify that visiting privileges may not be withheld as the result of a disciplinary hearing, commonly referred to as a Tier II hearing in the Department's three-tiered disciplinary system.

Section 254.7 has been revised to permit the suspension of an inmate's visiting privileges as the result of a superintendent's hearing, commonly referred to as a Tier III hearing in the Department's three-tiered disciplinary system. Under the proposed rules, an inmate's visiting privileges may be suspended if an inmate is found guilty of misconduct "as a result of the inmate's presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program." Visiting sanctions are available for a wide variety of categories of serious misconduct. Where the conduct is only between the inmate and a visitor, the sanction may be limited to that inmate's ability to receive visits from that visitor. Where the conduct involves other persons, including committing a sexual act where other visitors may witness such misconduct, a visiting sanction would preclude the inmate from all visits for the specified term. Similarly, conduct involving the smuggling of money, alcohol, marijuana, narcotics and other dangerous drugs, weapons, and escape paraphernalia would authorize the hearing officer to suspend visiting privileges with all visitors. Visiting sanctions under this subparagraph fall within the limits set forth in the penalty chart set forth at section 201.4(e).

A number of additional procedural safeguards have been added to this rule as well. Any disposition imposing a loss of visiting privileges with all visitors for two years or more is automatically forwarded to the superintendent for a discretionary review under section 254.9. Where the sanction is an indefinite suspension of the inmate's visiting privileges, the visiting sanction will be reviewed by the director of special housing and inmate disciplinary program even if the inmate does not appeal. A disciplinary loss of visiting privileges over two years, including an indefinite suspension, is entitled subject to the request for reconsideration procedures set forth at section 201.6. In any case where the hearing officer can impose a loss of visiting privileges; he or she may choose to limit the inmate to noncontact visiting as an alternative.

Section 254.7(a)(1)(iv) provides that an inmate's visiting privileges may be suspended for drug related offenses or for refusing to cooperate with urinalysis testing procedures. These sanctions are authorized without respect to the location of the misconduct. A first offense may be punished by up to 6 months loss of visiting privileges. A second or subsequent offense may be punished by up to 1 year loss of visiting privileges.

Section 1704.7 has been revised to clarify the limitations on visiting for an inmate confined to a cell or room for more than 30 days, and that further restriction may be imposed under Part 201, Chapter V or section 302.2(i)(1) of Title 7 NYCRR.

4. Costs

a. To agency, state and local government: No discernable costs are anticipated.

b. Cost to private regulated parties: None. The proposed rule changes do not impose any costs on any private regulated parties.

c. This cost analysis is based upon the fact that the rule changes merely clarify and expand upon previously established rules regarding the inmate visiting program. No additional procedures or new staff are necessary to implement the proposed changes.

5. Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules.

6. Local Government Mandates

There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.

7. Duplication

These proposed amendments do not duplicate any existing State or Federal requirement.

8. Alternatives

The Department has considered a number of alternatives to preserve maximum visitation privileges for the vast majority of the inmates committed to the Department and their visitors in recognition of the fact that visitation remains the best way for inmates to maintain their relationships with the family and friends when such privileges are used to maintain a positive relationship. The Department seeks to change the visiting regulations in that they have been inadequate to deal with certain incidents of extreme violence and other types of misconduct that sometimes occur in the Department's visiting rooms and to permit the Department to use the suspension of an inmate's visiting privileges as a management technique to enforce rules prohibiting the use, possession and exchange of drugs within the State's correctional facilities. The proposed rules also set forth uniform entrance procedures for all persons not employed by the Department seeking to enter a Department facility.

The Department considered various alternatives to the proposed rules for available visitation related dispositions upon a determination of guilt following a superintendent's hearing under section 254.7. In order to balance the Department's needs to 1) address serious visit related misconduct; 2) the abuse of drugs in the Department's Correctional Facilities and 3) make it clear that a lengthy suspension of visiting privileges is seen as a significant penalty, the Department added a number of procedural protections to section 254.7.

The proposed rules allow for a sanction involving the loss of visiting privileges for a wide-range of visit-related misconduct. These sanctions may involve a loss of visiting privileges with specified visitors where the misconduct involved only the inmate and those visitors. Where the misconduct was not limited to a specified visitor or visitors (such as an assault on a staff member or another inmate) and for certain types of misconduct where, in the Department's judgment, other persons such as staff or other visitors are effected (sexual conduct in the presence of other visitors and their children, smuggling of contraband such as drugs, weapons, etc.), the sanction will involve a loss of all visiting privileges.

To ensure the appropriate use of these new penalties, any disposition imposing a loss of visiting privileges with all visitors for two years or more is automatically forwarded to the superintendent for a discretionary review under section 254.9. Where the sanction is an indefinite suspension of the inmate's visiting privileges, the visiting sanction will be reviewed by the director of special housing and inmate disciplinary program even if the inmate does not appeal. The hearing officer also has the discretion to limit an inmate to noncontact visiting in lieu of suspending all visiting privileges.

The proposed rules also authorize visiting sanctions for certain types of inmate misconduct that is not directly related to visitation. Although the Department considered making such sanctions available for a wide-range of serious misconduct, it concluded that at this juncture visiting sanctions would be made available only for misconduct involving drug use, drug possession and urinalysis testing procedures. Also, rather than leaving the length of the penalties completely within the discretion of the hearing officer, sanctions are limited to 6 months for a first offense and 1 year for any repeat offense.

During the drafting process, and in connection with ongoing matters related to the Kozlowski litigation, the Department shared a draft of the proposed rules with Prisoners' Legal Services of New York (PLS). PLS in turn shared the draft with the Legal Aid Society, Prisoners' Rights Project. The two organizations submitted joint comments by letter dated September 13, 2010. On November 3, 2010, several representatives of PLS and Legal Aid participated in a meeting with the Department to discuss the proposed rules.

The primary concerns noted involved the attorneys and others having difficulty clearing metal detector searches, concerns regarding the substance detection/Ion Scan testing, the authorized visit related penalties and the availability of central office review for "revocations", and the authorization under the inmate disciplinary rules of a suspension of all visitation privileges when conduct is not limited to a single visitor. Many of these concerns were freely discussed at the meeting. Although some of the concerns were determined to be the result of a difference in philosophy, the Department has made a number of revisions to the proposed rule based upon the comments and the discussions.

The current proposal clarifies that certain types of garments, such as underwire bras and clothing containing metal studs, are likely to set off metal detectors resulting in the potential that a more intrusive search will be necessary before visitation will be permitted. With respect to the concerns on attorney visits, the rule has been modified to clarify that the front gate staff should consult with the superintendent before requesting that the attorney consent to a more intrusive search.

In the draft rule, the Department utilized 60 days for all appeal timeframes. PLS and Legal Aid suggested that this was too long to decide an appeal on a suspension of visiting privileges for a term of less than 6 months. The Department, PLS and Legal Aid discussed the matter and concluded that 45 days was a reasonable time frame for issuing a written decision reviewing a suspension of visiting privileges for a term of less than 6 months.

In an effort to ease concerns over the potential for the increased use of "revocations" of visiting privileges, a penalty authorized under the current rule, which is available for more categories of misconduct under the proposed rule, the Department has redrafted the penalty to provide for the "indefinite suspension" of visiting privileges. Under either the originally proposed revocation or an indefinite suspension, the visitor may apply to the superintendent for modification of the penalty on an annual basis. As a result of the discussion with PLS and the Legal Aid Society, the Department created the additional opportunity to appeal the denial of such a request for reconsideration every five years by writing to the Commissioner.

9. Federal Standards

The proposed rules are consistent with United State Supreme Court precedent in Overton v. Bazzetta, 539 U.S. 126 (2003) and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) analyzing visitation privileges in the prison context.

10. Compliance Schedule

The Department of Corrections and Community Supervision will achieve compliance with the proposed rules over a period of six months following adoption.

Revised Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal amends policies and standards of behavior for the Department of Corrections and Community Supervision inmate visitor program.

Revised Rural Area Flexibility Analysis

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal amends policies and standards of behavior for the Department of Corrections and Community Supervision inmate visitor program.

Revised Job Impact Statement

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal merely amends policies and standards of behavior for the Department of Corrections and Community Supervision inmate visitor program.

Assessment of Public Comment

The Department received comments from two members of the Legislature, the New York Civil Liberties Union (NYCLU), the New York State Defenders Association (NYSDA), and joint comments from the Prisoners' Rights Project of the Legal Aid Society of New York and Prisoners' Legal Services of New York (PRP/PLS).

Assemblyman Aubry expressed concern that eliminating the penalty chart would result in the maximum penalty being imposed for first time infractions. Assemblyman Lavine commented that the range of penalties for each violation is increased creating a risk of "increasing arbitrary decision-making." He suggested adopting a graduated schedule of recommended sanctions. The Department intends to adopt recommended sanction guidelines, while preserving the discretion to impose the maximum penalty for egregious cases for a first act of misconduct when appropriate.

Assemblyman Lavine commented on the deletion of "all visitors shall be provided with written notification of the visiting rules and regulations; however, it will be considered sufficient notice if such rules and regulations are conspicuously posted" from the regulation. In response, a non-substantive revision is being made to section 201.3(a) adding "the department shall maintain on its website the full text of Parts 200 and 201." The Department will also conduct an educational campaign for staff, offenders and current visitors prior to the October 1, 2012 effective date.

Assemblyman Aubry noted that the new penalty chart does not reference non-contact visitation. The proposed rule provides discretion to use a non-contact visiting limitation at any time a term of suspension or indefinite suspension is authorized.

Assemblyman Aubry cautioned that we not "reach the point where all shu inmates also lack visits because the Indefinite Suspension of Visiting Privileges has become as routine as the suspension of packages and commissary." The proposed rules only permit an Indefinite Suspension of an offender's Visiting Privileges for specific types of misconduct committed in connection with the visiting program.

Assemblyman Aubry expressed concern with the revision to the search procedures deleting language that permitted a visitor to voluntarily remove items that may have triggered a metal detector. The revision responds to situations when it is inappropriate for the visitor to remove the item in the visitor processing area, such as an item of clothing containing metal buckles or a piece of body jewelry. This revision ensures that proper protocols are followed to prevent indecent exposure, and to ensure proper documentation of searches.

The New York Civil Liberties Union (NYCLU) focused on the use of the Ion Scanner for visitor screening. The regulation strikes the appropriate balance between necessary security screenings and the interests of persons seeking to enter a correctional facility. Non-contact visitation or more intrusive searches will not detect well-hidden contraband, prevent that contraband from being passed to an inmate, or sufficiently deter visitors from attempting to smuggle drugs into the facility.

Ion Scan equipment is operated by staff that have been properly trained in the use of the equipment and appropriate steps are taken to address the concern of "false positives". NYCLU referenced the misconception that certain medications may cause "false positives". Even though this common misconception has been disproved, when a visitor asserts that a positive result was caused by prescribed medication, the Department consults with the manufacturer to determine whether the result could be from the medication. In virtually every case, the prescribed medication could not have caused the positive test result.

The NYCLU was concerned that the regulation did not address "calibration" of the equipment. A non-substantive revision was made to section 200.2(e)(1) providing that "All substance abuse detection/ion scan staff shall use the thresholds established and approved by the deputy commissioner for correctional facilities to determine whether or not a test is positive."

The joint comments from PRP/PLS noted that stopping the introduction of drugs into facilities and curbing inappropriate physical contact in the Department's visiting rooms are important goals, but that the rules fail to adequately consider the countervailing goals of maintaining family and community ties.

The comments assert that targeted suspensions of visits between prisoners and their visitors should be used to address sexual misconduct. The Department believes a sexual act in the visiting room in the presence of other visitors and their children is abhorrent behavior. To curtail such conduct, it must be clear that the offender risks losing visits with more than just the offending visitor. The proposed rule provides that a visiting sanction will be between the offender and the visitor, unless others are subjected to exposure. The maximum penalty for Unacceptable Physical Conduct at section 201.4(e)(3) has been clarified to provide "A term of Suspension or Indefinite Suspension shall be limited to the involved visitor if the visitor was the only direct participant in the misconduct, however, if other visitors, in particular children, were subjected to exposure then the term of Suspension or Indefinite Suspension may be imposed with all visitors." Similar clarifying changes were made for sanctions involving the introduction of contraband money and alcohol.

PRP/PLS objected to the elimination of signature cards as an acceptable form of identification. This policy change may be difficult for some and DOCCS considered the potential costs. Forms of identification have changed significantly since the 1986 regulation was adopted. Today, the possession of verifiable photographic identification is a necessity. Requiring photographic identification for adult visitors is a necessary change and a first step toward enhancing the Department's visitor identification system.

PRP/PLS expressed concerns regarding the proposed ion scanner rules and noted that the rule text provides for a denial of up to 2 days where the penalty chart provides "Visit Denied for (2) calendar days". Non-substantive changes to section 200.2(e) and 201.4(e)(2)(ii) to match the penalty chart and delete the misleading phrase "up to" have been made.

PRP/PLS made several suggestions regarding strip search procedures. The Department will revise the consent to search form to clarify that the visitor need not consent to a strip search and that choosing not to consent will have no consequences beyond denial of the visit.

PRP/PLS suggested that DOCCS clarify that the visitor's identification is not considered contraband under section 200.3(a)(4). We believe the language is clear. The specified items are only contraband if they are passed to an offender. However, the inclusion of alcohol may be misleading. Therefore, a non-substantive change was made moving the word "alcohol" to the list of prohibited items under 200.3(c)(1). In response to comments from NYSDA, "business cards" was also removed from the list of items an inmate is prohibited from possessing.

PRP/PLS suggested that clear guidelines defining appropriate attire would avoid the imposition of divergent views on what is, or is not, acceptable. In order to address this concern, we clarified that shorts or skirts shorter than mid-thigh length are unacceptable.

PRP/PLS referenced section 201.4(d) regarding inmate suspensions and commented that "visit related misconduct" is not defined. Section 201.4(d) cross-references proposed section 254.7. Section 254.7(a)(1)(iii) provides that visit related misconduct is "improper conduct as a result of the inmate's presence or conduct in connection with a visiting, family reunion or special events program, or processing before or after participation in such program." Thus, the term is defined in the regulation authorizing a hearing officer to impose a loss of visiting privileges on an inmate.

PRP/PLS commented about their disagreement with the elimination of clearly defined escalating penalties. The Department will address the proper use of penalties through training and by creating recommended sanction guidelines. The rules caution that the penalties are intended as maximum penalties for egregious conduct. Further, a number of reviews and safeguards are in place to avoid an abuse of discretion.

PRP/PLS believes that a maximum penalty of indefinite suspension of all visits is too harsh for offenders and visitors who engage in intercourse, sodomy, or other sexual activity including masturbation. The Department wants to be clear; engaging in a sexual act during a visit or special event where other visitors and children may witness such misconduct will not be tolerated. We reject the suggestion that the maximum penalty is too harsh.

PRP/PLS suggested that the appeal from a denial of a request for reconsideration be available more often then every fifth year. Although the Department believes that permitting a second level of appeal every five years is sufficient, we recognize that the burden of permitting such reviews more frequently is likely to be minimal. Accordingly, the rule was revised to permit an appeal every three years.

PRP/PLS commented that section 254.7(a)(1)(iii)(b) addressing the difference between conduct involving a single visitor and that not limited to a single visitor is vague and undefined. In most cases, it is clear whether only a single visitor is involved. The Department has defined certain additional categories of misconduct as involving more then the single visitor: Misconduct involving Unacceptable Physical Conduct during which other visitors were subjected to exposure and misconduct involving an attempt to introduce money, alcohol, marijuana, narcotic and other dangerous drugs, any item which is readily capable of being used to cause death or serious injury, or any item which may be used to aid in escape.

PRP/PLS objected to amendments authorizing a loss of visiting privileges with all visitors sanctions for smuggling drugs and dangerous contraband. These rules are necessary to properly encourage offenders to make good choices.

PRP/PLS objected to the provisions of section 254.7(a)(iv) allowing for visit-related sanctions for specified offenses regardless of the location of the misconduct. Such penalties are the only meaningful sanctions for many offenders and they are necessary and appropriate.

NYSDA focused on attorney visits. NYSDA sought an addition to section 200.2(d)(iii) clarifying that legal papers may be subjected to a cursory examination for contraband, but nothing more. The Department added cautionary language providing that "Inspection of handbags, briefcases, and other containers in the possession of an attorney or duly approved legal representative prior to an approved legal visit shall be limited to a cursory examination for contraband. Written materials shall be inspected, as unobtrusively as possible, to verify that the materials do not contain contraband."

NYSDA suggested that the regulation clearly define the procedure for a confirmed positive Ion Scan test. The Department made a non-substantive revision to section 200.2(e) to indicate "If a visitor tests positive, a second test will be conducted to confirm or negate the first test result" and "A confirmed positive test means that a second sample from the same area on the person or the person's belongings tests positive for the same substance."

NYSDA asserted that the penalty for a refusal to submit to an Ion Scan test should not be a 2 day denial of visitation. Treating a refusal to submit to a test in the same manner as a positive test is appropriate, in part because Ion Scan searches are conducted at random rather then for every visit.

NYSDA noted that the language in proposed section 200.2(f)(5) suggested that past refusals to submit to a strip search may be a factor considered in denial of a future visit. The rule has been clarified by deleting the word "solely".

NYSDA suggested a list of contraband items should be given to each visitor and that the definition of contraband should not include an attorney's business card. Business cards were removed from the list of items an inmate is prohibited from possessing. A cross reference to section 270.2 (B)(14) of Title 7, setting forth the Standards of Inmate Behavior concerning contraband, has been added.

NYSDA referenced the language at 201.2(b)(7) permitting the Superintendents to modify department visiting rules to adjust to local conditions and suggested that all such modifications should be posted at the relevant facility and on the Department's website. Local visiting policies are provided to offenders as a part of their facility orientation. Local visiting policies are also made available to current or prospective visitors through the facility.