SB1617 - 542R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Heading change

The chapter heading of title 31, chapter 5, Arizona Revised Statutes, is changed from "RESTRAINTS ON PREGNANT PRISONERS" to "INCARCERATION RESTRICTIONS".

Sec. 2. Title 31, chapter 5, article 1, Arizona Revised Statutes, is amended by adding section 31-602, to read:

START_STATUTE31-602. Isolated confinement restrictions; definitions

A. Except as provided in subsection b of this section, THE USE OF isolated confinement in correctional facilities IS LIMITED AS FOLLOWS:

1. An inmate may not be placed in isolated confinement unless there is reasonable cause to believe that the inmate would create a substantial risk of serious harm to self or others, including another inmate, a correctional officer or another employee or volunteer in the correctional facility, as evidenced by recent threats or conduct, and a less restrictive intervention would be insufficient to reduce this risk. Except as otherwise required, the correctional facility has the burden of establishing this standard by clear and convincing evidence.

2. An inmate may not be placed in isolated confinement for nondisciplinary reasons.

3. An inmate may not be placed in isolated confinement for more than fifteen consecutive days or for more than twenty days during any sixty-day period.

4. An inmate may not be placed in isolated confinement before receiving a personal and comprehensive medical and mental health examination conducted by a clinician, except that in a county jail, a preliminary examination shall be conducted by a member of the medical staff within twelve hours after the confinement and the clinical examination shall be conducted within forty‑eight hours after the confinement. If staffing levels require, the period for conducting a clinical examination may be extended to seventy‑two hours after confinement.

5. An inmate may only be held in isolated confinement pursuant to initial procedures and reviews that provide timely, fair and meaningful opportunities for the inmate to contest the confinement. These procedures must include all of the following:

(a) the right to an initial hearing within forty‑eight hours after placement or, if exigent circumstances exist, within seventy‑two hours after placement.

(b) in the absence of exceptional circumstances, unavoidable delays or reasonable postponements, A review every five days after the initial hearing.

(d) the right to be represented at the hearing.

(e) An independent hearing officer.

(f) A written statement of reasons for the decision made at the hearing.

(g) The right to an appeal of the placement decision.

6. The prison administrator shall make the final decision to place an inmate in isolated confinement. The final decision must be made in writing.

7. An inmate may not be placed or retained in isolated confinement if the prison administrator determines that the inmate no longer meets the standard for the confinement.

8. A clinician shall conduct a mental health and physical health status examination for each inmate who is placed in isolated confinement on a daily basis, in a confidential setting outside of the cell whenever possible, to determine whether the inmate is a member of a vulnerable population, except that an inmate who is in isolated confinement in a county jail shall be evaluated by a member of the medical staff as frequently as clinically indicated, but at least once per week. Except as otherwise provided in subsection b of this section, an inmate who is determined to be a member of a vulnerable population shall be immediately removed from isolated confinement and moved to an appropriate placement.

9. A disciplinary sanction of isolated confinement is deemed to be satisfied if the sanction was imposed on an inmate who is removed from isolated confinement pursuant to paragraph 8 of THIS SUBSECTION.

10. During a facility-wide lockdown, an inmate may not be placed in isolated confinement for more than ten consecutive days or for more than twenty days during any sixty-day period.

11. Cells or other holding or living spaces that are used for isolated confinement must be properly ventilated, lit, temperature-monitored, clean and equipped with properly functioning sanitary fixtures.

12. A correctional facility shall maximize the amount of time that an inmate who is held in isolated confinement spends outside of the cell by providing, as much as possible, access to recreation, education, clinically appropriate treatment therapies, skill-building activities and social interaction with staff and other inmates.

13. An inmate who is held in isolated confinement may not be denied access to reading materials, food, water or other basic necessity.

14. An inmate who is held in isolated confinement may not be denied access to appropriate medical care, including emergency medical care.

15. An inmate who is in a State correctional facility may not be directly released from isolated confinement to the community during the final one hundred eighty days of the inmate's term of incarceration, unless there is clear and convincing evidence that it is necessary for the safety of the inmate, staff, other inmates or the public. An inmate in a county jail may not be directly released from isolated confinement to the community during the final thirty days of the inmate's term of incarceration, unless there is clear and convincing evidence that it is necessary for the safety of the inmate, staff, other inmates or the public. If an exception applies, the determination must be documented and signed by the prison administrator.

16. An inmate may not be held in isolated confinement based on the inmate's race, religion, creed, color, national origin, nationality, ancestry, age, marital status, domestic partnership or civil union status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding status, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait.

17. an inmate who is a member of a vulnerable population may not be placed in isolated confinement.

18. An inmate may not be placed in isolated confinement or in any other cell or other holding or living space with one or more inmates 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 inmate or another inmate in that placement.

b. The use of isolated confinement is allowed under the following limited circumstances:

1. The prison administrator or designated shift commander determines that a facility-wide lockdown is required to ensure the safety of inmates in the facility until the administrator or shift commander determines that these circumstances no longer exist. The prison administrator or shift commander shall document specific reasons why any lockdown is necessary for more than twenty‑four hours and why less restrictive interventions are insufficient to accomplish the facility's safety goals. Within fifteen days after the lockdown, the director shall publish the reasons on the Department's website and provide meaningful notice of the reasons for the lockdown to the Legislature.

2. The prison administrator determines that an inmate should be placed in emergency confinement, except that:

(a) an inmate may not be held in emergency confinement for more than twenty‑four hours.

(b) an inmate who is held in emergency confinement in a State correctional facility shall receive an initial medical and mental health evaluation immediately before being placed in emergency confinement and a personal and comprehensive medical and mental health evaluation within two hours after placement in emergency confinement. The examination shall be conducted by a member of the medical staff. Reports of these evaluations shall be immediately provided to the prison administrator.

3. A clinician, based on a personal examination, determines that an inmate should be placed or retained in medical isolation. The decision to place and retain an inmate 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, a clinical review shall be conducted at least every eight hours and as clinically indicated. An inmate in medical isolation pursuant to this paragraph may be placed in a mental health unit designated by the director. In the case of a county jail, a decision to place an inmate in medical isolation shall be made by a member of the medical staff and be based on a personal examination. clinical reviews shall be conducted within seventy‑two hours and then as clinically indicated.

4. The prison administrator determines that an inmate should be placed in protective custody as follows:

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

(b) The inmate may be placed in involuntary protective custody only when there is clear and convincing evidence that protective custody is necessary to prevent reasonably foreseeable harm and that a less restrictive intervention would not be sufficient to prevent the harm.

(c) Protective custody conditions shall be identical to the conditions of the general population and include, at a minimum, twelve hours out-of-cell time each day. An inmate who is placed in protective custody shall receive similar opportunities for activities, movement and social interaction, consistent with the inmate's safety and the safety of others, as do inmates in the general population. An inmate who is in protective custody may not receive less than twelve hours of out-of-cell time each day unless there is an UNFORESEEN imminent security risk, the SECURITY risk is documented and all restrictions are approved in writing by the prison administrator.

(d) An inmate who is subject to removal from protective custody shall be provided with a timely, fair and meaningful opportunity to contest the removal.

(e) An inmate who may be placed or who currently is in voluntary protective custody may opt out of that status by providing an informed, voluntary, written refusal of that status.

(f) The prison administrator shall place an inmate in a less restrictive intervention, including transfer to the general population of another correctional facility or to a special-purpose housing unit for inmates who face similar threats, before placing the inmate in isolated confinement for protection, unless the inmate poses a security risk so great that transferring the inmate would be insufficient to ensure the inmate's safety.

5. An inmate may not be placed in isolated confinement pending the investigation of a disciplinary offense unless either:

(a) the inmate's presence in the general population poses a danger to the inmate, staff, other inmates or the public the danger is documented and the placement is approved in writing by the prison administrator. In making this determination, the prison administrator shall consider whether the offense involved violence or escape or posed a threat to institutional safety by encouraging others to engage in misconduct.

(b) the prison administrator grants approval in an emergency situation and documents the approval in writing.

6. An inmate's placement in isolated confinement pending the investigation of a disciplinary offense shall be reviewed within twenty‑four hours by a supervisory employee who was not involved in the initial placement decision.

c. At least ninety days before January 1, 2021, the director shall:

1. develop policies and implement procedures for reviewing inmates who are placed in isolated confinement and submit proposed rules.

2. initiate a review of each inmate who is placed in isolated confinement pursuant to the policies and procedures developed and implemented under subsection D of this section.

3. develop a plan for providing step-down and transitional units, programs and staffing patterns to accommodate inmates who are currently placed in isolated confinement, inmates who will be placed in isolated confinement, and inmates who receive an intermediate sanction in lieu of being placed in isolated confinement. Staffing patterns for correctional and program staff shall be set at levels that are necessary to ensure the safety of staff and inmates.

d. the director shall adopt rules to implement this section. The rules must:

1. Include less restrictive interventions to isolated confinement, including:

(a) separation from other inmates.

(b) transfer to other correctional facilities.

2. Not restrict:

(a) Religious materials and activities, literacy materials, mail and telephone privileges, visit contacts or outdoor and recreation access unless the restrictions are imposed only as is necessary for the safety of the inmate or others.

(b) Access to food, hygiene products and other basic necessities or legal access.

3. require training of disciplinary staff and all staff working with inmates in isolated confinement including:

(a) assistance from appropriate professionals to periodically train all staff working with inmates in isolated confinement.

(b) standards for isolated confinement, including that isolated confinement is limited to when an inmate commits an offense involving violence, escapes or attempts to escape or poses a threat to institutional safety and that the maximum penalties for each offense are based on the seriousness of the offense and available less restrictive interventions.

(c) the identification of developmental disabilities and the symptoms of mental illness, including trauma disorders and methods of safe responses to people in distress.

4. require documentation of all decisions, procedures and reviews of inmates who are placed in isolated confinement.

5. require monitoring of compliance with all rules governing cells, units and other places where inmates are placed in isolated confinement.

6. require posting on the department's website of quarterly reports on the use of isolated confinement, without revealing any personal identifying information, by age, sex, gender identity, ethnicity, incidence of mental illness and type of confinement status, at each correctional facility, including a county jail. these reports shall include the population on the last day of each quarter and a nonduplicative cumulative count of inmates exposed to isolated confinement for each fiscal year. These inmate reports also shall include the incidence of emergency confinement, self-harm, suicide and assault in any isolated confinement unit. These reports may not include personally identifiable information regarding any inmate. The reports shall also be submitted to the legislative and each county board of supervisors

e. For the purposes of this section:

1. "Clinician" means a State licensed physician, except if the clinician makes mental health evaluations, clinician includes a State licensed psychiatrist or psychologist or a nurse practitioner or clinical nurse specialist with a specialty in psychiatric nursing.

2. "Correctional facility” means any State correctional facility or county jail and any State, county or private facility detaining persons pursuant to any intergovernmental service agreement or other contract with any State, county or federal agency, including United States Immigration and Customs Enforcement.

3. "Director" means the director of the state department of corrections if the inmate is in prison or the sheriff if the inmate is in jail.

4. "Emergency confinement" means the segregation of an inmate in a correctional facility when there is reasonable cause to believe that this segregation is necessary for reducing a substantial risk of imminent serious harm to the inmate or others as evidenced by recent conduct.

5. "Inmate" means a person who is confined in a correctional facility.

6. "Isolated confinement" means any form of cell confinement of an inmate in a correctional facility, pursuant to 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 seventeen hours or more per day in a State correctional facility or a county jail, with severely restricted activity, movement and social interaction. Isolated confinement does not include confinement due to a facility-wide or unit-wide lockdown that is required to ensure the safety of inmates and staff.

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

8. "Medical isolation" means isolated confinement of an inmate for medical reasons, including a mental health emergency or when necessary for preventing the spread of a communicable disease.

9. "Medical staff" means State licensed physicians, physician assistants, nurse practitioners or clinical nurse specialists or, for mental health evaluations or decisions, those registered nurses with a specialty in psychiatric nursing or comparably credentialed employees or contractors employed to provide healthcare.

10. "Member of a vulnerable population" means an inmate who:

(a) is twenty‑one years of age or less.

(b) is fifty‑five years of age or older.

(c) has a serious mental disability or a disability based on a mental illness, has a history of psychiatric hospitalization or has recently exhibited conduct, including serious self-mutilation, indicating the need for further observation or evaluation to determine the presence of mental illness.

(d) has a developmental disability.

(e) has a serious medical condition that cannot effectively be treated in isolated confinement.

(f) is pregnant, is in the postpartum period or has recently suffered a miscarriage or terminated a pregnancy.

(g) has a significant auditory or visual impairment.

(h) is perceived to be lesbian, gay, bisexual, transgender or intersex.

12. "Prison administrator" or "administrator" means the chief operating officer or senior administrative designee of a correctional facility.

13. "Postpartum period" means the eight weeks after childbirth.

14. "Protective custody" means confinement of an inmate in a cell or similarly confined holding or living space under conditions that are necessary to protect the inmate or others.

11. "Serious mental disability" means either:

(a) A serious mental illness including schizophrenia, psychosis, major depression and bipolar disorder.

(b) Having a significant functional impairment along with a brain injury, organic brain syndrome or intellectual disability.

15. "State correctional facility" means a State prison or other penal institution. END_STATUTE

Sec. 3. Effective date

This act is effective from and after December 31, 2020.