CCS-24-15-00012-P Procedures for Implementing Standards of Inmate Behavior; Superintendent's Hearing; Method of Determination; Juvenile Separation

6/17/15 N.Y. St. Reg. CCS-24-15-00012-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 24

June 17, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CCS-24-15-00012-P

Procedures for Implementing Standards of Inmate Behavior; Superintendent's Hearing; Method of Determination; Juvenile Separation

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

Proposed Action:

Amendment of section 254.6; and addition of new Part 321 to Title 7 NYCRR.

Statutory authority:

Correction Law, section 112

Subject:

Procedures for implementing standards of inmate behavior; superintendent's hearing; method of determination; juvenile separation.

Purpose:

Set forth when an inmate's age and intellectual capacity is considered in disciplinary cases. Juvenile disciplinary housing.

Text of proposed rule:

Amend section 254.6(a)(4) of 7NYCRR as follows:

(4) When applicable, the information identified in subparagraphs (b)(1)(i), (ii), (iv), (v), and (2)(i), (ii), (iii), and subdivision (h) of this section, derived from the department's electronic databases, shall automatically appear on a computer generated hearing record sheet that shall be provided to the hearing officer for use at the hearing.

Amend section 254.6(b)(2)(i) of 7NYCRR:

(i) the incident occurred while the inmate was assigned to the special needs unit (SNU) at Wende, [Arthurkill] Clinton, Woodbourne, Bedford Hills or Sullivan Correctional Facilities, as indicated on the hearing record sheet;

Add a new section 254.6(b)(2)(iii) and re-number the old section 254.6(b)(2)(iii) to 254.6(b)(2)(iv) to 7NYCRR:

(iii) the incident occurred while the inmate was assigned to the correctional alternative rehabilitation program (CAR) at Sullivan Correctional Facility, as indicated on the hearing record sheet; or

(iv) it appears to the hearing officer, based on the inmate's testimony, demeanor, the circumstances of the alleged offense or any other reason, that the inmate may have been intellectually impaired at the time of the incident or may be intellectually impaired at the time of the hearing.

Add a new section 254.6(h) to 7NYCRR:

(h) Juveniles. When an inmate is under the age of 18 at the time of the incident, as indicated on the hearing record sheet, the hearing officer shall consider the inmate’s age as a mitigating factor. The written statement of the disposition of the charges, if any, shall, in accordance with section 254.7(a)(5) of this Part, reflect how the inmate's age affected the disposition.

Add a new Part 321 to read as follows:

PART 321

JUVENILE SEPARATION UNITS

Section 321.1 Disciplinary confinement of juvenile inmates.

An inmate under the age of eighteen years of age who receives a disciplinary confinement penalty in accordance with section 253.7 or 254.7 of this Title shall serve that penalty in a juvenile separation unit (JSU) as defined in section 321.2 of this Part.

Section 321.2 Juvenile separation unit.

A JSU is a separate housing location within a correctional facility designed for inmates under eighteen years of age who, due to their behavior, would otherwise be serving a disciplinary confinement penalty in a SHU or in another housing unit. The unit is designed to meet the educational and other needs of the inmates, while maintaining adequate safety and security on the unit, with a goal of expediting their transition back to general population and encouraging their interactions with others. Although a JSU is not operated as a disciplinary housing unit, in light of the security concerns associated with the behaviors that resulted in their confinement and other penalties, inmates on the unit may be subject to limitations on the quantity and type of property they are permitted to have in their cells and may receive access to programs that are more restrictive than those afforded general population inmates in order to maintain security and order on the unit. An inmate housed in a JSU shall be offered six hours of out-of-cell time on weekdays, excluding holidays. The out-of-cell time shall consist of a minimum of four hours of education and other appropriate programming, and weather permitting, two hours of outside exercise. A minimum of two hours of out-of-cell outside exercise shall also be offered on weekends and holidays, weather permitting. An inmate can be denied out-of-cell activities described in this section, if the commissioner or his or designee determines that the inmate’s participation in such activities presents an imminent risk of danger to the inmate or to others.

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

Kevin P. Bruen, Deputy Commissioner and Counsel, NYS Department of Corrections and Community Supervision, 1220 Washington Avenue - Harriman State Campus - Building 2, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

Statutory Authority

Section 112 of Correction Law assigns to the Commissioner the superintendence, management and control of all inmates confined within correctional facilities, including all matters relating to their discipline.

Legislative Objectives

By setting forth in regulations when an inmate’s age and intellectual capacity is to be considered as a mitigating factor in Tier III inmate disciplinary cases and where and under what conditions inmates under the age of eighteen are to be confined for disciplinary violations, the proposal accords with the public policy objective of having rules and of regulation in place for the management, control, and discipline of inmates.

Needs and Benefits

The proposal advances the current Department policy of considering an inmate’s age as a mitigating factor in Tier III inmate disciplinary cases, where the inmate is under the age of 18 at the time of the incident. The Legislature has set 18 as the age of majority in New York State. It also advances the current Department policy of considering an inmate’s intellectual capacity in Tier III inmate disciplinary cases under certain circumstances. The proposal also sets forth the where and under what conditions an inmate under the age of 18 is to be confined.

Costs

The projected costs of the rule, including responses to a, b, and c are set forth below:

a) Costs to regulated parties for the implementation of and continuing compliance with the rule – There are no outside regulated parties associated with this proposal, it applies only to the internal operation of Department correctional facilities and the inmates located therein.

b) Costs to the agency, the state and local governments for the implementation and continuation of the rule – There are no additional costs associated with the implementation and continuation of this proposal regarding the method of determining Tier III inmate disciplinary cases as such determinations already includes a consideration of a number of factors. As the juvenile separation units have already been constructed, there is no additional cost associated with the construction. As the inmates in the juvenile separation units are currently housed elsewhere, there will be a partial offset from the reallocation of existing resources. Any new staffing and other operational costs were already allocated to the Department in fiscal year 2014 and 2015.

c) The information, including the source(s) of such information and the methodology upon which the cost analysis is based – The cost analysis is based upon current Department practice and experience.

Local Government Mandates

This proposal imposes no program, service, duty or responsibility upon any county, city, town, village, school district or other special district. It applies only to the internal management of correctional facilities and the inmates located therein.

Paperwork

The proposal would add only minimum additional reporting requirements internal to the agency.

Duplication

There is no overlap or conflict with any other legal requirements of the state or federal government.

Alternatives

There are no significant alternatives to be considered.

Federal Standards

There are no federal government standards applicable to this proposal.

Compliance Schedule

Compliance with this proposal is expected upon adoption.

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 sets forth when an inmate’s age and intellectual capacity is to be considered as a mitigating factor in Tier III inmate disciplinary cases and also sets forth the where and under what conditions an inmate under the age of 18 is to be confined.

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 sets forth when an inmate’s age and intellectual capacity is to be considered as a mitigating factor in Tier III inmate disciplinary cases and also sets forth the where and under what conditions an inmate under the age of 18 is to be confined.

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 sets forth when an inmate’s age and intellectual capacity is to be considered as a mitigating factor in Tier III inmate disciplinary cases and also sets forth the where and under what conditions an inmate under the age of 18 is to be confined.