AN ACT Relating to solitary confinement; amending RCW 72.09.015; adding a new section to chapter 72.09 RCW; adding a new section to chapter 70.48 RCW; adding a new section to chapter 36.28A RCW; creating new sections; and providing an effective date.

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

(2) Solitary confinement should only be used when necessary, and should not be used against vulnerable populations or under conditions or for time periods that foster psychological trauma, psychiatric disorders, or serious, long-term damage to a person's brain.

(5) More than 800 adults continue to be held in solitary confinement in Washington's prisons; solitary confinement is disproportionately imposed upon Black, indigenous, and Hispanic people in the state's prisons.

(6) In addition to the devastating and lasting psychological consequences of solitary confinement, recent studies have shown that people in these restrictive settings also have higher rates of medical concerns and have a shorter life expectancy once released to the community. Studies have also shown that people released to the community directly from solitary confinement also have higher recidivism rates.

(1) "Adult basic education" means education or instruction designed to achieve general competence of skills in reading, writing, and oral communication, including English as a second language and preparation and testing services for obtaining a high school diploma or a high school equivalency certificate as provided in RCW 28B.50.536.

(2) "Base level of correctional services" means the minimum level of field services the department of corrections is required by statute to provide for the supervision and monitoring of offenders.

(3) "Civil judgment for assault" means a civil judgment for monetary damages awarded to a correctional officer or department employee entered by a court of competent jurisdiction against an inmate that is based on, or arises from, injury to the correctional officer or department employee caused by the inmate while the correctional officer or department employee was acting in the course and scope of his or her employment.

(5) "Contraband" means any object or communication the secretary determines shall not be allowed to be: (a) Brought into; (b) possessed while on the grounds of; or (c) sent from any institution under the control of the secretary.

(6) "Correctional facility" means a facility or institution operated directly or by contract by the secretary for the purposes of incarcerating adults in total or partial confinement, as defined in RCW 9.94A.030.

(10) "Emergency confinement" means the solitary confinement of an incarcerated person in a correctional facility when there is reasonable cause to believe that this confinement is necessary for reducing a substantial risk of imminent serious harm to the incarcerated person or others, as evidenced by recent conduct.

(11) "Evidence-based" means a program or practice that has had multiple-site random controlled trials across heterogeneous populations demonstrating that the program or practice is effective in reducing recidivism for the population.

(((11)))(12) "Extended family visit" means an authorized visit between an inmate and a member of his or her immediate family that occurs in a private visiting unit located at the correctional facility where the inmate is confined.

(((14)))(15) "Immediate family" means the inmate's children, stepchildren, grandchildren, great grandchildren, parents, stepparents, grandparents, great grandparents, siblings, aunts, uncles, and a person legally married to or in a state registered domestic partnership with an inmate. "Immediate family" includes the immediate family of an inmate who was adopted as a child or an adult, but does not include an inmate adopted by another inmate.

(((15)))(16) "Incarcerated person" means a person in the custody of the department including, but not limited to, persons residing in a correctional institution or facility and persons released from such facility on furlough, work release, or community custody, and persons received from another state, state agency, county, or federal jurisdiction.

(17) "Indigent inmate," "indigent," and "indigency" mean an inmate who has less than a twenty-five dollar balance of disposable income in his or her institutional account on the day a request is made to utilize funds and during the thirty days previous to the request.

(((16)))(18) "Individual reentry plan" means the plan to prepare an offender for release into the community. It should be developed collaboratively between the department and the offender and based on an assessment of the offender using a standardized and comprehensive tool to identify the offender's risks and needs. The individual reentry plan describes actions that should occur to prepare individual offenders for release from prison or jail, specifies the supervision and services they will experience in the community, and describes an offender's eventual discharge to aftercare upon successful completion of supervision. An individual reentry plan is updated throughout the period of an offender's incarceration and supervision to be relevant to the offender's current needs and risks.

(((17)))(19) "Inmate" means a person committed to the custody of the department, including but not limited to persons residing in a correctional institution or facility and persons released from such facility on furlough, work release, or community custody, and persons received from another state, state agency, county, or federal jurisdiction.

(((18)))(20) "Labor" means the period of time before a birth during which contractions are of sufficient frequency, intensity, and duration to bring about effacement and progressive dilation of the cervix.

(((19)))(21) "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 incarcerated person's movement, privileges, activities, or social interactions than solitary confinement.

(22) "Medical isolation" means solitary confinement of an incarcerated person for medical reasons including, but not limited to, a mental health emergency or when necessary for preventing the spread of a communicable disease.

(23) "Medical provider" means state-licensed psychiatrists, physicians, physician assistants, advanced practice nurses 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 health care.

(c) Has a mental disorder, as defined by RCW 71.05.020, or where there is evidence of a diagnosis of a serious mental illness, a history of psychiatric hospitalization, or a history of disruptive or self-injurious behavior including, but not limited to, serious and/or repeated self-harm, that may be the result of a mental disorder or condition;

(25) "Physical restraint" means the use of any bodily force or physical intervention to control an offender or limit an offender's freedom of movement in a way that does not involve a mechanical restraint. Physical restraint does not include momentary periods of minimal physical restriction by direct person-to-person contact, without the aid of mechanical restraint, accomplished with limited force and designed to:

(((20)))(26) "Postpartum recovery" means (a) the entire period a woman or youth is in the hospital, birthing center, or clinic after giving birth and (b) an additional time period, if any, a treating physician determines is necessary for healing after the woman or youth leaves the hospital, birthing center, or clinic.

(((21)))(27) "Privilege" means any goods or services, education or work programs, or earned early release days, the receipt of which are directly linked to an inmate's (a) good conduct; and (b) good performance. Privileges do not include any goods or services the department is required to provide under the state or federal Constitution or under state or federal law.

(((23)))(29) "Protective custody" means confinement of an incarcerated person in a cell or similarly confined holding or living space, under conditions necessary to protect the incarcerated person or others.

(((26)))(33) "Significant expansion" includes any expansion into a new product line or service to the class I business that results from an increase in benefits provided by the department, including a decrease in labor costs, rent, or utility rates (for water, sewer, electricity, and disposal), an increase in work program space, tax advantages, or other overhead costs.

(((27)))(34) "Solitary confinement" means confinement of an incarcerated person in a correctional facility, pursuant to disciplinary, administrative, protective, investigative, mental health or medical, or other classification, in a cell or similarly confined holding or living space, alone or with other incarcerated persons, for 20 hours or more per day. Solitary confinement shall not include confinement due to a facility-wide or unit-wide lockdown that is required to ensure the safety of incarcerated persons and staff or confinement due to quarantine or isolation measures undertaken in response to a public health crisis or declared state of emergency.

(((28)))(36) "Transportation" means the conveying, by any means, of an incarcerated pregnant woman or youth from the correctional facility to another location from the moment she leaves the correctional facility to the time of arrival at the other location, and includes the escorting of the pregnant incarcerated woman or youth from the correctional facility to a transport vehicle and from the vehicle to the other location.

(((29)))(37) "Unfair competition" means any net competitive advantage that a business may acquire as a result of a correctional industries contract, including labor costs, rent, tax advantages, utility rates (water, sewer, electricity, and disposal), and other overhead costs. To determine net competitive advantage, the department of corrections shall review and quantify any expenses unique to operating a for-profit business inside a prison.

(i) An incarcerated person shall not be placed in solitary confinement unless there is reasonable cause to believe that the incarcerated person would create a substantial risk of immediate serious harm to himself or another, as evidenced by recent threats or conduct, and a less restrictive intervention would be insufficient to reduce this risk.

(i) An incarcerated person shall not be placed in solitary confinement before receiving a personal and comprehensive medical and mental health examination conducted by a qualified medical provider unless there is reasonable cause to believe that such advance evaluation would create a substantial threat to security or safety; in such instances an evaluation must occur within one hour of placement in solitary confinement.

(ii) An incarcerated person shall only be held in solitary confinement pursuant to initial procedures and reviews that provide timely, fair, and meaningful opportunities for the incarcerated person to contest the confinement. These procedures shall include the right to an initial hearing within 72 hours of placement; the right to appear at the hearing; the right to assistance at the hearing by a lay advisor or other person of their choosing, including but not limited to other incarcerated individuals, outside advocates, or retained counsel; an independent hearing officer; a written statement of reasons for the decision made at the hearing; and a written statement on how to appeal a hearing determination.

(c) Except as otherwise provided in subsection (3)(c) of this section, the final decision to place an incarcerated person in solitary confinement shall be made by the superintendent.

(d) Except as otherwise provided in (e) of this subsection and subsection (3)(c) of this section, an incarcerated person shall not be placed or retained in solitary confinement if the superintendent determines that the incarcerated person no longer meets the standard for the confinement.

(e) A qualified medical provider shall conduct a mental health and physical health status examination for each incarcerated person placed in solitary confinement on a daily basis, in a confidential setting outside of the cell whenever possible, to determine whether the incarcerated person is a member of a vulnerable population. Except as otherwise provided in subsection (3) of this section, an incarcerated person determined to be a member of a vulnerable population shall be immediately removed from solitary confinement and moved to an appropriate placement.

(f) A disciplinary sanction of solitary confinement that has been imposed on an incarcerated person who is removed from solitary confinement pursuant to (e) of this subsection, shall be deemed to be satisfied.

(g) Except as otherwise provided in subsection (3)(a) of this section, during a facility-wide lockdown, an incarcerated person shall not be placed in solitary confinement for more than 15 consecutive days, and for no more than 45 cumulative days during a single fiscal year.

(h) Cells or other holding or living spaces used for solitary confinement are to be properly ventilated, appropriately lit, temperature-monitored, clean, and equipped with properly functioning sanitary fixtures.

(i) A correctional facility shall maximize the amount of time that an incarcerated person held in solitary confinement spends outside of the cell by providing, as appropriate, access to outdoor and indoor recreation, education, clinically appropriate treatment therapies, skill-building activities, and social interaction with staff and other incarcerated persons.

(l) An incarcerated person shall not be directly released from solitary confinement to the community, unless it is necessary for the safety of the incarcerated person, staff, other incarcerated persons, or the public.

(m) An incarcerated person shall not be held in solitary confinement based on the incarcerated person's race, 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.

(2) Except as otherwise provided in subsection (3) of this section, an incarcerated person who is a member of a vulnerable population shall not be placed in solitary confinement.

(i) Shall not be subject to discipline for refusing treatment or medication, for self-harming or related conduct or threats of this conduct, or for other behavior that is due to a disability; and

(ii) Who would otherwise be placed in solitary confinement shall be screened by a qualified medical provider for placement in a residential treatment unit or close observation unit for observation and assessment, or transferred to the least restrictive appropriate short-term care or psychiatric facility designated by the department of social and health services pursuant to RCW 72.68.031.

(b) An incarcerated person who is a member of a vulnerable population because the incarcerated person is under 25 or over 60 years of age, has a serious medical condition that cannot be effectively treated in solitary confinement, a physical disability that cannot be accommodated in solitary confinement, has significant auditory or visual impairment, is pregnant, is in the postpartum period, or has recently suffered a miscarriage or terminated a pregnancy, and who would otherwise be placed in solitary confinement, shall alternately be placed in an appropriate medical or other unit as designated by the secretary.

(a) The superintendent or their designee determines that a facility-wide lockdown is required to ensure the safety of incarcerated persons in the facility until the superintendent or their designee determines that these circumstances no longer exist. The superintendent or designee shall document specific reasons why any lockdown is necessary for more than 24 hours and why less restrictive interventions are insufficient to accomplish the facility's safety goals. Within seven days, the secretary shall publish the reasons for the lockdown on the department of corrections website and provide meaningful notice of the reasons for the lockdown to the legislature and the office of the corrections ombuds.

(ii) An incarcerated person held in emergency confinement shall receive an initial in-person medical and mental health evaluation prior to placement in emergency confinement unless there is reasonable cause to believe that an advance evaluation would create a substantial threat to security or safety. In such instances, an evaluation must occur within one hour of placement in emergency confinement. A comprehensive medical and mental health evaluation shall be conducted by a member of the medical staff within 12 hours of emergency confinement. Reports of these evaluations shall be immediately provided to the superintendent of the facility and the secretary.

(c) A qualified medical provider, based on a personal examination, determines that an incarcerated person should be placed or retained in medical isolation. The decision to place and retain an incarcerated person in medical isolation due to a mental health emergency shall be made by a qualified medical provider based on a personal examination. In any case of isolation under this subsection, an in-person clinical review shall be conducted at least every six hours and as clinically indicated. An incarcerated person in medical isolation pursuant to this subsection shall be placed in a residential treatment unit, a close observation unit, or a medical unit, as designated by the secretary.

(d) If the superintendent determines that an incarcerated person should be placed in solitary confinement in order to protect their safety, the safety of staff, or other incarcerated people, protective custody shall proceed as follows:

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

(ii) The incarcerated person may be placed in solitary confinement for involuntary protective custody only when there is clear and convincing evidence that such confinement is necessary to prevent reasonably foreseeable harm and that a less restrictive intervention would not be sufficient to prevent the harm. Placement in solitary confinement for involuntary protective custody shall not exceed 72 hours.

(iii) An incarcerated person placed in solitary confinement for the purposes of protective custody shall receive comparable opportunities for activities, movement, and social interaction, consistent with their safety and the safety of others as are available to incarcerated persons in the general population of the facility.

(iv) An incarcerated person subject to removal from solitary confinement for the purposes of protective custody shall be provided with a timely, fair, and meaningful opportunity to contest the removal.

(v) An incarcerated person who may be placed or currently is in solitary confinement for the purposes of voluntary protective custody may opt out of that status by providing informed, written refusal of that status.

(vi) The superintendent shall place an incarcerated person in a less restrictive intervention, including transfer to the general population of another institution or to any unit designated for incarcerated persons who face similar threats, before placing the incarcerated person in solitary confinement for either voluntary or involuntary protective custody unless the incarcerated person poses an extraordinary security risk so great that transferring the incarcerated person would be insufficient to ensure the incarcerated person's safety or the safety of others.

(i) The incarcerated person's presence, in the general population, poses a serious and imminent danger to the incarcerated person, staff, other incarcerated persons, or the public. In making this determination, the superintendent shall consider the seriousness of the alleged offense, including whether the offense involved violence or escape, or posed a threat to institutional safety by encouraging others to engage in serious misconduct; or

(b) An incarcerated person's placement in solitary confinement pending investigation of a disciplinary offense shall be reviewed within 24 hours by a supervisory employee who was not involved in the initial placement decision.

(c) An incarcerated person who has been placed in solitary confinement pending investigation of a disciplinary offense shall be considered for release to the general population every 24 hours; and if the incarcerated person demonstrates good behavior during that period, he or she shall be released. If the incarcerated person is found guilty of the disciplinary offense, the incarcerated person's good behavior shall be considered in determining the appropriate penalty. In no circumstance should an incarcerated person remain in solitary confinement pending investigation of a disciplinary offense for more than 15 days.

(a) Develop policies and implement procedures for the review of incarcerated persons placed in solitary confinement and submit proposed regulations for adoption as required by subsection (6) of this section;

(b) Initiate a review of each incarcerated person currently in solitary confinement pursuant to the policies and procedures developed and implemented under (a) of this subsection; and

(c) Develop a plan for providing step-down and transitional units, programs, and staffing patterns to accommodate incarcerated persons in solitary confinement, incarcerated persons who will be placed in solitary confinement, and incarcerated persons who receive an intermediate sanction in lieu of being placed in solitary confinement.

(a) Regulations establishing less restrictive interventions to solitary confinement, including means of separating or protecting incarcerated persons without use of solitary confinement;

(b) Establishing that restrictions on religious, mail, and telephone privileges, visit contacts, and outdoor and indoor recreation shall only be imposed as is directly necessary for the safety of the incarcerated person or others, and that there shall be no restrictions on access to food, basic necessities, or legal access;

(i) Assistance from appropriate professionals including, but not limited to, professionals in the department of social and health services to periodically train all staff working with incarcerated persons in solitary confinement and alternatives to such confinement;

(ii) Standards for solitary confinement, including that it shall be limited to when an incarcerated person commits an offense involving serious violence, escapes or attempts to escape, or poses a serious threat to institutional safety; that the maximum penalties for each offense shall be based on the seriousness of the offense; and available less restrictive interventions;

(iii) The identification of developmental disabilities, and the symptoms of mental illness, including traumatic brain injuries, trauma, and personality disorders, and methods of safe responses to people in distress; and

(f) Requiring posting on the official website of the department monthly reports on the use of solitary confinement, by age, sex, gender identity, ethnicity, incidence of a mental disorder, and type of confinement status, number of people released from solitary confinement directly to the community, and the mean and median period of solitary confinement at each facility, and these reports shall include the population on the last day of each quarter and a nonduplicative cumulative count of people exposed to solitary confinement for each fiscal year. These incarcerated person reports shall also include the incidence of emergency confinement, self-harm, suicide, and assault in any solitary confinement unit, as well as explanations for each instance of facility-wide lockdown. These reports shall not include personally identifiable information regarding any incarcerated person; and

(1) A governing unit operating one or more jails must compile on a monthly basis until June 1, 2021, the following information with respect to each jail operated by the governing unit:

(c) For each instance of solitary confinement, the length of time the individual remained in solitary confinement, whether or not supervisory review of the solitary confinement occurred and was documented, whether or not a medical assessment or review and a mental health assessment or review were conducted and documented, and whether or not the affected person was afforded full access to education, programming, and ordinary necessities such as medication, meals, and reading material during the term of solitary confinement.

(3) For the purposes of this section, "solitary confinement" means confinement of an incarcerated person in a jail, pursuant to disciplinary, administrative, protective, investigative, mental health or medical, or other classification, in a cell or similarly confined holding or living space, alone or with other incarcerated persons, for 20 hours or more per day. Solitary confinement shall not include confinement due to a jail-wide lockdown that is required to ensure the safety of incarcerated persons and staff or confinement due to quarantine or isolation measures undertaken in response to a public health crisis or declared state of emergency.

(3) An initial report must be submitted, in compliance with RCW 43.01.036, to the appropriate committees of the legislature by December 1, 2021. An updated report must be submitted, in compliance with RCW 43.01.036, to the appropriate committees of the legislature by December 1, 2022.