HB5417ham001 99TH GENERAL ASSEMBLY

Rep. La Shawn K. Ford

Filed: 4/1/2016

09900HB5417ham001 LRB099 17537 RLC 46417 a

AMENDMENT TO HOUSE BILL 5417

AMENDMENT NO. ______. Amend House Bill 5417 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Isolated Confinement Restriction Act.

Section 5. Findings. The General Assembly finds and declares that:

(1) The use of isolated confinement in this State's correctional facilities shall be restricted to ensure the safe and humane operation of these facilities, consistent with the Illinois Constitution, the laws and public policies of this State, the mission of the correctional system, evolving medical knowledge, and human rights standards of decency.

(2) Isolated confinement shall only be used when absolutely necessary, and shall not be used against vulnerable populations or under conditions or for time periods that are in excess of 5 days which can foster psychological trauma, psychiatric disorders, or serious, long-term damage to an isolated person's brain.

(3) The standards established in this Act shall apply to all persons confined in correctional facilities under the jurisdiction of this State regardless of the civil or criminal nature of the charges against them.

Section 10. Definitions. In this Act:

"Clinician" means any of the following:

(1) a physician who is licensed to practice medicine in all of its branches and is certified in psychiatry by the American Board of Psychiatry and Neurology or the American Osteopathic Board of Neurology and Psychiatry, or has completed 4 years of an accredited post-graduate training program in psychiatry; or

(2) a licensed clinical psychologist.

"Committed person" means a person confined in a correctional facility.

"Correctional facility" means any State correctional facility or county correctional facility, and any State, county, or private facility detaining persons under any intergovernmental service agreement or other contract with any State, county, or federal agency, including, but not limited to, United States Immigration and Customs Enforcement.

"Director" means the Director of Corrections.

"Emergency confinement" means the isolated confinement of a committed person in a correctional facility when there is reasonable cause to believe that this confinement is necessary to reduce a substantial risk of imminent serious harm to the committed person or others.

"Facility administrator" or "administrator" means the chief operating officer, senior administrative designee, or warden of a correctional facility.

"Isolated confinement" means confinement of a committed person in a correctional facility, under disciplinary, administrative, protective, investigative, medical, or other classification, in a cell or similarly confined holding or living space, alone or with other inmates, for approximately 20 hours or more per day, with severely restricted activity, movement, and social interaction.

"Less restrictive intervention" means a placement or conditions of confinement, or both, in the current or an alternative correctional facility, under less restrictive conditions on a committed person's movement, privileges, activities, and social interactions.

"Medical isolation" means isolated confinement of a committed person for medical reasons, including a mental health emergency or when necessary to prevent the spread of a communicable disease.

"Member of a vulnerable population" means any committed person who:

(1) is 21 years of age or younger;

(2) is 55 years of age or older;

(3) has a disability based on a mental illness, a history of psychiatric hospitalization, or has recently exhibited conduct, including, but not limited to, serious self mutilation, indicating the need for further observation or evaluation to determine the presence of mental illness;

(4) has a developmental disability;

(5) has a serious medical condition which cannot effectively be treated in isolated confinement;

(6) is pregnant;

(7) has a significant auditory or visual impairment; or

(8) is lesbian, gay, bisexual, or transgender.

"Protective custody" means confinement of a committed person in a cell or similarly confined holding or living space, under conditions necessary to protect the committed person or others.

"State correctional facility" means a State prison or other penal institution or an institution or facility designated by the Director as a place of confinement.

Section 15. Restrictions on the use of isolated confinement.

(a) Except as provided in subsection (b), the use of isolated confinement in correctional facilities in this State shall be restricted as follows:

(1) a committed person shall not be placed in isolated confinement unless there is reasonable cause to believe that the committed person would create a substantial risk of immediate serious harm to himself, herself, or another, and a less restrictive intervention would be insufficient to reduce this risk and the correctional facility shall bear the burden of establishing this standard;

(2) a committed person shall not be placed in isolated confinement before receiving a personal and comprehensive medical and mental health examination conducted by a clinician;

(3) the final decision to place a committed person in isolated confinement shall be made by the facility administrator;

(4) a committed person shall not be placed or retained in isolated confinement if the facility administrator determines that the committed person no longer meets the standard for isolated confinement;

(5) a committed person who is a member of a vulnerable population shall not be placed in isolated confinement and any committed person who is a member of a vulnerable population shall not be subject to discipline for refusing treatment or medication, or for self-harming or related conduct or threats of this conduct, and shall be placed in a specialized unit, as designated by the Director, or be civilly admitted or committed to an appropriate facility designated by the Department of Human Services;

(6) a committed person shall not be placed in isolated confinement or in any other cell or holding space or living space, in any facility, with one or more committed persons if there is reasonable cause to believe that there is a risk of harm or harassment, intimidation, extortion, or other physical or emotional abuse to that committed person or another committed person in that placement; and

(7) except during a facility-wide lockdown, a committed person may not be placed in isolated confinement for more than 5 consecutive days or more than 5 days during any 150-day period;

(8) a committed person shall not involuntarily be placed in isolated confinement for non-disciplinary reasons;

(9) a committed person shall only be held in isolated confinement under initial procedures and reviews which provide timely, fair, and meaningful opportunities for the committed person to contest the confinement, including the right to an initial hearing within 72 hours of placement and a review by the facility administrator or his or her specifically designated employee each 4 days thereafter, unless exceptional circumstances, unavoidable delays, or reasonable postponements exist; the right to appear at the hearing, the right to be represented at the hearing, an independent hearing officer, and a written statement of reasons for the decision made at the hearing; and

(10) cells or other holding or living spaces used for isolated confinement shall be ventilated, lit, temperature-controlled, clean, and equipped with properly functioning sanitary fixtures.

(b) Isolated confinement shall be permitted under limited circumstances as follows:

(1) The facility administrator determines that a lock down is to be implemented in the limited area of the correctional facility where an outbreak or violence has occurred, or when a facility-wide lockdown is required to ensure the safety of committed persons in the facility until the administrator determines that these circumstances no longer exist. The facility administrator shall document specific reasons why any lockdown is necessary for more than 24 hours, and why less restrictive interventions are insufficient to accomplish the safety goals. Within 6 hours of a decision to extend a lockdown beyond 24 hours, the Director shall publish the reasons on the Department of Corrections website and provide meaningful notice of the reasons for the lockdown to the General Assembly.

(2) The facility administrator determines that a committed person shall be placed in emergency confinement.

(A) A committed person shall not be held in emergency confinement for more than 24 hours.

(B) A committed person held in emergency confinement shall receive an initial medical and mental health evaluation within 2 hours, and a personal and comprehensive medical and mental health evaluation within 24 hours. Reports of these evaluations shall be immediately provided to the facility administrator.

(3) A physician, based on a personal examination, determines that a committed person shall be placed or retained in medical isolation. The decision to place and retain a committed person in medical isolation due to a mental health emergency shall be made by a clinician based on a personal examination. In any case of isolation under this paragraph (3), a clinical review shall be conducted at least every 6 hours and as indicated. A committed person in medical isolation under this paragraph (3) shall be placed in a mental health unit as designated by the Director.

(4) The facility administrator determines that a committed person should be placed in protective custody as follows:

(A) The committed person may be placed in voluntary protective custody only with informed, voluntary, written consent and when there is reasonable cause to believe that confinement is necessary to prevent reasonably foreseeable harm and if a committed person makes an informed voluntary written request for protective custody, the correctional facility shall bear the burden of establishing a basis for refusing the request.

(B) The committed person may be placed in involuntary protective custody only if there is clear and convincing evidence that confinement is necessary to prevent reasonably foreseeable harm and that no less restrictive intervention would be sufficient to prevent that harm.

(C) A committed person placed in protective custody shall receive comparable opportunities for activities, movement, and social interaction, consistent with his or her safety and the safety of others, as do committed persons in the general population of the facility.

(D) A committed person subject to removal from protective custody shall be provided with a timely, fair, and meaningful opportunity to contest the removal.

(E) A committed person who may be placed or currently is in voluntary protective custody may opt out of that status by providing informed, voluntary, written refusal of that status.

(5) A member of a vulnerable population shall not be placed in isolated confinement with one or more committed persons, except with the committed person's informed, voluntary, and written consent.

Section 20. Department rules.

(a) Within 90 days after the effective date of this Act, the Director shall:

(1) develop policies and implement procedures for the review of committed persons placed in isolated confinement and submit proposed rules for adoption as required by this Act;

(2) initiate a review of each committed person placed in isolated confinement under the policies and procedures developed and implemented under this Act; and

(3) develop a plan for providing step-down and transitional units, programs, and staffing patterns to accommodate committed persons currently placed in isolated confinement.

(b) The Department of Corrections shall adopt rules to carry out the provisions of this Act. The rules shall include, but not be limited to:

(1) establishing less restrictive housing to isolated confinement, including: separation from other committed persons; transfer to other correctional facilities; any non-isolated confinement sanction authorized by Department of Corrections rules; removing restrictions on religious practices, mail, telephone privileges, and visit contacts; and restrictions on outdoor and recreation access shall only be imposed as is necessary for the safety of the committed person or others, and in no case shall restrict access to food, basic necessities, or legal access;

(2) requiring training of disciplinary staff and all staff working with committed persons in isolated confinement and requiring that this training include:

(A) assistance from appropriate professionals in the Department of Human Services to periodically train all staff working with committed persons in isolated confinement; and

(B) standards for isolated confinement, the identification of developmental disabilities, and the symptoms of mental illness, including trauma disorders, and methods of safe responses to people in distress;

(3) requiring documentation of all decisions, procedures, and reviews of committed persons placed in isolated confinement;

(4) requiring monitoring of compliance with all rules governing cells, units, and other places where committed persons are placed in isolated confinement; and

(5) requiring posting on the official website of the Department of Corrections of quarterly reports on the use of isolated confinement, by age, sex, gender identity, ethnicity, incidence of mental illness, and type of confinement status, at each facility; these reports shall include the population on the last day of each quarter and a non-duplicative cumulative count of persons exposed to isolated confinement for each fiscal year. These reports shall include the incidence of emergency confinement, self-harm, suicide, and assault in any isolated confinement unit, as well as explanations for each instance of facility-wide lockdown. These reports shall not include personally identifiable information regarding any committed person.

Section 105. The Unified Code of Corrections is amended by changing Section 3-8-7 as follows:

(730 ILCS 5/3-8-7) (from Ch. 38, par. 1003-8-7)

Sec. 3-8-7. Disciplinary Procedures.)

(a) All disciplinary action shall be consistent with this Chapter. Rules of behavior and conduct, the penalties for violation thereof, and the disciplinary procedure by which such penalties may be imposed shall be available to committed persons.

(b)(1) Corporal punishment and disciplinary restrictions on diet, medical or sanitary facilities, mail or access to legal materials are prohibited.

(2) (Blank).

(3) (Blank).

(c) Review of disciplinary action imposed under this Section shall be provided by means of the grievance procedure under Section 3-8-8. The Department shall provide a disciplined person with a review of his or her disciplinary action in a timely manner as required by law.

(d) All institutions and facilities of the Department of Corrections shall establish, subject to the approval of the Director, procedures for hearing disciplinary cases except those that may involve the imposition of disciplinary segregation and isolation; the loss of good time credit under Section 3-6-3 or eligibility to earn good time credit.

(e) In disciplinary cases which may involve the imposition of disciplinary segregation and isolation, the loss of good time credit or eligibility to earn good time credit, the Director shall establish disciplinary procedures consistent with the following principles:

(1) Any person or persons who initiate a disciplinary charge against a person shall not determine the disposition of the charge. The Director may establish one or more disciplinary boards to hear and determine charges.

(2) Any committed person charged with a violation of Department rules of behavior shall be given notice of the charge including a statement of the misconduct alleged and of the rules this conduct is alleged to violate.

(3) Any person charged with a violation of rules is entitled to a hearing on that charge at which time he shall have an opportunity to appear before and address the person or persons deciding the charge.

(4) The person or persons determining the disposition of the charge may also summon to testify any witnesses or other persons with relevant knowledge of the incident.

(5) If the charge is sustained, the person charged is entitled to a written statement of the decision by the persons determining the disposition of the charge which shall include the basis for the decision and the disciplinary action, if any, to be imposed.

(6) (Blank).

(f) In disciplinary cases which may involve the imposition of segregation and isolation, isolated confinement, or restrictive housing, the Director shall establish disciplinary procedures consistent with the Isolated Confinement Restriction Act.

(Source: P.A. 97-1083, eff. 8-24-12.)

Section 999. Effective date. This Act takes effect January 1, 2017, except that this Section and Section 20 take effect upon becoming law.".