October 16, 2015 The Board of Correction again faces the question of how can it curb historic levels of violence at Rikers Island. Putting aside for a moment the merits of the new rules now proposed by the Department of Correction, the New York Civil Liberties Union1  (“NYCLU”) respectfully suggests this hearing is a critical moment to take a step back and for all parties to acknowledge that the Department’s proposed rules, like the ones that came before them and the ones that will come after, are simply working at the margins of the core issue. The time and effort that the Department, the Board, advocates and the public dedicated to drafting, reviewing and debating rules such as these is ultimately wasted in the absence of an aggressive plan to dramatically reduce the population at Rikers. Reducing the population at Rikers by one half or more would reduce violence and free up resources and physical space for the Department to effectuate the type of fundamental cultural and staff changes it so desperately needs. Until that occurs, proposed rule changes like this one will continue to treat symptoms of violence, but not the underlying disease. To truly solve the problem of violence at Rikers, the Board must recommend bold measures to reduce the population at Rikers to dramatically lower levels that are more manageable. The rules now proposed by the Department are an unfortunately apt illustration of this dynamic. In the view of the NYCLU, the rules proposed by the Department would at best have only a slight impact on levels of violence, while at the same time negatively impacting the incarcerated and their families. On the merits of the rules themselves, the NYCLU urges the Board of Correction to reject the Department’s proposed visitation changes, reject the proposed longer punitive segregation sentences for assaults on corrections staff, and amend the proposed rule for waiving the buffer period between solitary sentences. There is no question that serious violence at Rikers merits a serious response. But the Department’s proposed responses reflect the failed, overly-punitive approach that public officials throughout the country have long championed to a destructive result: our state of mass incarceration. More than any other agency or body in New York City, the Board is uniquely positioned to appreciate the scope of the challenge before the Department, and the reality that both the Department and the Board are unlikely to have any success in reducing violence or evolving the agency’s culture toward more effective and humane practices until and unless the Rikers population is brought down to far lower levels. For that reason, the Board should exercise its authority to propose measures to the mayor, city council, and the Department that in the short- and long-term significantly, and safely, reduce the inmate population at Rikers. 1. Reject the Proposed Visitation Changes Because Their Harms Outweigh Their Intended Benefits. While well intentioned, the costs of the Departments’ proposed visitation changes are far too high for the marginal safety benefits they are likely to obtain, and the across-the-board restrictions raise serious legal concerns that can and should be avoided by making individualized determinations. Nearly 80% of all contraband at Rikers originated from within the facility—metal or wooden objects converted into shanks or other weapons.2  In 80% of stabbing and slashing incidents last year, the Department was unable to recover the weapon used.3  That illustrates the challenge in stemming the flow of in-house contraband even when the Department, because of a violent incident, is alerted to its presence. Significant reductions in the inmate population, coupled with the automatic increase in staff-to-inmate ratios that would bring, is critical to achieve a long-lasting reduction in violence. And the benefits of the proposed visitation changes—which necessarily can impact only the 10% of contraband that comes in through visits4  — are far outweighed by the resulting harm to the incarcerated and their families. Instead, the Department should implement practical visitation changes that, over time, are just as likely to reduce contraband, without harming family interactions. Contact visits should not be limited without an individualized determination, based on specific facts, that a visit would pose a threat to the safety or security of the facility. The benefits of visits, and contact visits in particular, for incarcerated individuals are widely recognized. Indeed, the proposed rule itself states that personal connections, through visits, can play a critical role in improving behavior and re-entry outcomes.5  Nonetheless, the proposed rule seeks to restrict the kisses, hugs, and other forms of affection that may be exchanged between incarcerated individuals and their friends and family. The proposed restrictions are universal, and, in effect, function as a form of collective punishment: the many inmates who do not smuggle in contraband through visits are denied critical contact with their loved ones because of the few who have. A blanket restrictive policy such as this raises serious state constitutional concerns. Pre-trial detainees have a fundamental due process right to maintain relationships with friends and family through contact visits.6  That right, under the New York State Constitution, can only be restricted if the security concern of the government outweighs the harms to the individual.7  Applying this balancing test, New York courts have held that a blanket restriction on pre-trial detainees’ due process rights, “without regard for the individual situation of each detainee,” violates their rights to due process.8  Such restrictions should be made on a case-by-case basis, rather than as a universal rule.9  The Department’s proposed universal restrictions on contact visits may fail to pass state constitutional muster. Pre-trial detainees constitute the overwhelming number of inmates at Rikers.10  Worse, the Department’s proposed restrictions, if implemented, would result in a contact visit policy for Rikers pre-trial detainees that is more restrictive than what is afforded to convicted general population prisoners in New York State’s prisons.11  Contraband is no less of a problem in state prisons. Yet state prisoners are allowed to kiss, hug, and embrace throughout the entirety of a visit.12  There are less restrictive options available to reduce contraband. The Department should increase the number of corrections officers present during visits and increase video surveillance in visiting rooms. These two changes will reduce the entry of contraband during visits, while respecting the personal connections achieved through contact visits. Where specific facts warrant restrictions on an inmate’s right to contact visits, the Minimum Standards already empower the Department to impose restrictions to protect the safety and security of the facility.13  The authority to limit or revoke an individual’s right to visit an inmate based, in part, on the individual’s past criminal convictions, their probation or parole status, or their lack of a familial or intimate relationship with an inmate is prone to abuse. It is unclear how these “status” factors will be used during the Department’s screening of visitors. The proposed rule fails to specify what weight the Department can ascribe to each factor. And it fails to explain what other factors must be present, in combination with these status factors, to merit a determination to limit or revoke a visitation. The NYCLU does not doubt the Department’s intention to use this proposed authority appropriately. But given the lack of detail over how these status factors will be used, the capacity for abuse of this authority is too great. The NYCLU urges the Board to reject this proposed visitation change. 2. Reduce the Reliance on Solitary Confinement as a Jail Management Tool. Combating against assaults on corrections staff and repeated assaults generally is a difficult task for the Department. Some inmates, we recognize, may need to be temporarily separated from others following a violent altercation. The NYCLU initially supported the creation of Enhanced Supervision Housing (“ESH”) units because, in contrast to punitive segregation, ESH’s intended purpose was a therapeutic one, including programming to address violent behavior, and increased out-of-cell time. But the Department’s proposal to increase solitary sentences for assaults on staff represents a return to a failed philosophy: that greater punishment equals a greater deterrent effect. Moreover, the Department’s requests to waive the requirement of a buffer period between solitary sentences for inmates who commit violent infractions during time out of solitary reflect an over reliance on solitary to manage violence. Overuse of solitary confinement is inhumane and can cause long-lasting damage to mental health. New York City was applauded just this year for taking progressive, aspirational steps to greatly reduce the solitary population. The NYCLU urges the Board to reject this step backward to failed jail management approaches. Greater solitary sentences will not deter assaults on staff as intended. The Department proposes 60-day sentences for assaults on corrections staff under the theory that the longer sentence will deter these assaults.14 But there is no evidence to support this proposition. The year prior to solitary reforms at Rikers, when long bouts in solitary were the norm, slashing and stabbing incidents were prevalent.15 Assaulting a corrections officer is a serious offense, and curbing such assaults is a goal the NYCLU shares with the Department. But the solution the Department proposes has already proven to be ineffective. A far better solution to the violence at Rikers has already been suggested by this Board: reduce the number of inmates confined in each housing unit, and increase the number of corrections personnel to improve supervision of inmates.16  Repeat violent offenders should temporarily be separated from other inmates following a violent incident, but less restrictive options should be explored before turning to solitary. The Department seeks the authority to waive the 7-day buffer period between punitive segregation sentences for those who commit a violent infraction during the buffer period. Though the NYCLU agrees that, following a violent altercation, it may be necessary to temporarily separate a repeat violent offender from the general population to protect the safety of other inmates, solitary should not be the first resort. Before turning to solitary, the Department should explore all least restrictive settings that can keep the general population safe, while not exposing the repeat offender to a greater risk of harm from an extended period in solitary. Only where no least restrictive setting is available should the Department be permitted to return a repeat offender to solitary. The Board should amend the petition to require that: (1) the Department certify, in writing, to the Board that it has exhausted all efforts to identify a least restrictive setting prior to seeking the waiver; (2) explain why placement in a less restrictive setting was deemed inappropriate or unavailable; (3) explain why retaining the inmate in punitive segregation is necessary to ensure the safety of inmates or staff; and (4) identify a plan to be pursued in the next 30-day period to avoid the need to issue another waiver. *** Whether by transferring out vulnerable populations, like juveniles and the mentally ill, in the short-term, or achieving systemic population reductions in the long-term, the inmate population at Rikers can be safely reduced to make Rikers more manageable and less violent. The NYCLU urges the Board to exercise its authority to study the best ways to reduce the inmate population, and release its recommendations to the mayor, city council, and the Department for adoption and implementation. We thank you for the opportunity to submit this testimony,17  and would welcome the opportunity to elaborate on any of the points raised herein. Footnotes 1  With 50,000 members, the NYCLU works to defend and promote the fundamental principles and values embodied in the Constitution, New York laws, and international human rights law, on behalf of all New Yorkers, including those incarcerated in jails and prisons. The NYCLU is an outspoken advocate for evidence-based corrections practices that improve public safety and respect fundamental human dignity. 2  City of New York Board of Correction, Violence in New York City Jails: Slashing and Stabbing Incidents, at 1 (April 22, 2015). 3  See id. at 5. 4  See id. at 1. 5  City of New York Board of Correction, Notice of Public Hearing and Opportunity to Comment on Proposed Rule, (Oct. 16, 2015). 6  Cooper v. Morin, 49 N.Y.2d 69, 81 (1979). 7  Id. at 79; see also People ex rel. Schipski v. Flood, 88 A.D.2d 197, 198-201, (2nd Dep’t 1982) (“restrictions on the liberties of pretrial detainees [in New York’s jails] must meet the exacting standard of ‘compelling government necessity’ in order to be sustained”) (citation omitted). 8  People ex rel. Schipski v. Flood, 88 A.D.2d at 199-201. 9  See id. 10  What Is Happening at Rikers Island?, The New York Times, (Dec. 15, 2014). 11  7 NYCRR § 201.3. 12  7 NYCRR § 201.3. 13  See § 1-09 of the BOC Minimum Standards. 14  City of New York Board of Correction, Notice of Public Hearing and Opportunity to Comment on Proposed Rule, at 3 (Oct. 16, 2015). 15  City of New York Board of Correction, Violence in New York City Jails: Slashing and Stabbing Incidents, at 2 (April 22, 2015). 16  See id. at 7. 17  While this testimony focuses on the proposed visitation and solitary changes, the NYCLU also urges the Board to reject the limits on packages sent by the friends and families of incarcerated individuals. This rule would cause unnecessary hardships for the poor who are unable to re-purchase items from pre-approved vendors to send to their incarcerated loved ones.