S-0420.1

SENATE BILL 5135

BySenators C. Wilson, Frame, Hunt, Kuderer, Lovelett, Nguyen, Nobles, Pedersen, Saldaña, and Wellman

AN ACT Relating to solitary confinement; amending RCW 72.09.015; adding new sections to chapter 72.09 RCW; creating new sections; providing an effective date; and providing expiration dates.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

The legislature also finds that people are held in similar conditions in other facilities, including those operated by private contractors for longer term detention. Due to the damage caused by solitary confinement over long periods, these facilities present similar risks to the safety and welfare of Washingtonians and solitary confinement within such facilities should be similarly restricted.

The legislature further finds that solitary confinement is occurring in local jails, and that additional data is needed in order to accurately assess the use of solitary confinement in these settings and what reforms may be needed in the future.

Sec. 3. RCW 72.09.015 and 2022 c 254 s 2 are each amended to read as follows:

The definitions in this section apply throughout this chapter.

(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.

(4) "Community custody" has the same meaning as that provided in RCW 9.94A.030 and also includes community placement and community supervision as defined in RCW 9.94B.020.

(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.

(7) "County" means a county or combination of counties.

(8) "Department" means the department of corrections.

(9) "Earned early release" means earned release as authorized by RCW 9.94A.729.

(10) "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) "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.

(12) "Good conduct" means compliance with department rules and policies.

(13) "Good performance" means successful completion of a program required by the department, including an education, work, or other program.

(14) "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) "Indigent inmate," "indigent," and "indigency" mean an inmate who has less than a $25 balance of disposable income in his or her institutional account on the day a request is made to utilize funds and during the 30 days previous to the request.

(16) "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) "Inmate" ((means))and "incarcerated person" mean 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, federally recognized tribe, or federal jurisdiction.

(18) "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) "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:

(a) Prevent an offender from completing an act that would result in potential bodily harm to self or others or damage property;

(b) Remove a disruptive offender who is unwilling to leave the area voluntarily; or

(c) Guide an offender from one location to another.

(20) "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) "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.

(22) "Promising practice" means a practice that presents, based on preliminary information, potential for becoming a research-based or consensus-based practice.

(23) "Research-based" means a program or practice that has some research demonstrating effectiveness, but that does not yet meet the standard of evidence-based practices.

(24) "Restraints" means anything used to control the movement of a person's body or limbs and includes:

(a) Physical restraint; or

(b) Mechanical device including but not limited to: Metal handcuffs, plastic ties, ankle restraints, leather cuffs, other hospital-type restraints, tasers, or batons.

(25) "Secretary" means the secretary of corrections or his or her designee.

(26) "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)(a) "Superintendent" means the superintendent of a correctional facility under the jurisdiction of the Washington state department of corrections, or his or her designee.

(28) "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) "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.

(30) "Vocational training" or "vocational education" means "vocational education" as defined in RCW 72.62.020.

(31) "Washington business" means an in-state manufacturer or service provider subject to chapter 82.04 RCW existing on June 10, 2004.

(32) "Work programs" means all classes of correctional industries jobs authorized under RCW 72.09.100.

NEW SECTION.  Sec. 4. A new section is added to chapter 72.09 RCW to read as follows:

An incarcerated or detained person may not be placed in solitary confinement except when necessary for emergency purposes in section 5 of this act, medical isolation in section 6 of this act, or when the incarcerated or detained person voluntarily requests such confinement conditions in section 7 of this act.

NEW SECTION.  Sec. 5. A new section is added to chapter 72.09 RCW to read as follows:

An incarcerated or detained person may be placed in solitary confinement for emergency purposes if: The person has not been determined to be a vulnerable person; the superintendent of the correctional facility or the person in charge of the detention facility finds that there is reasonable cause to believe that the solitary confinement is necessary to reduce or protect against a substantial risk of immediate serious harm to the person or another person, as evidenced by recent threats or conduct; and the superintendent of the correctional facility or the person in charge of the detention facility finds that a less restrictive intervention would insufficiently reduce this risk.

(2) INITIAL MEDICAL EVALUATION. (a)(i) Except as provided in (a)(ii) of this subsection, a qualified medical provider shall conduct a personal and comprehensive medical and mental health examination of the incarcerated or detained person within 24 hours of the person being placed in solitary confinement under this section.

(ii) A person who has been involved in an altercation or use of force must be examined by a qualified medical provider prior to being placed in solitary confinement.

(b) The comprehensive medical and mental health examination must include an assessment as to whether the person is a vulnerable person and whether the person's age or circumstance makes them particularly vulnerable to the harm of isolation, such that the person should be considered a vulnerable person. The examining qualified medical provider shall immediately report to the superintendent of the correctional facility or the person in charge of the detention facility if he or she makes any finding indicating that the person is vulnerable or that for any other reason continued placement in solitary confinement would be a risk to the person's health.

(c) A report of the qualified medical provider's conclusions based on the examination must be provided to the superintendent of the correctional facility and the secretary, or, if the person is detained in a detention facility, to the person in charge of the facility, as soon as possible and no later than the next business day.

(3)(a) 24-HOUR LIMIT. Except for extended solitary confinement as provided in (b) of this subsection, a person may not be held in solitary confinement for emergency purposes under this section for more than 24 consecutive hours and for more than 72 cumulative hours in any 30-day period.

(b) EXTENDED SOLITARY CONFINEMENT AND ONGOING REVIEW. An incarcerated or detained person may not be placed in extended solitary confinement for more than 15 consecutive days and for more than 45 cumulative days during a single fiscal year. For a person in extended solitary confinement:

(i) A qualified medical provider shall, every seven days, conduct a mental health and physical health status examination of the person, in a confidential setting outside of the cell unless doing so would present a substantial threat to security or safety or the person refuses to leave the cell. These examinations must be more frequent if indicated by the person's documented clinical needs pertaining to his or her identified health or health care concerns; and

(ii) The department or the detention facility shall provide the incarcerated or detained person with timely, fair, and meaningful opportunities to contest the extended solitary confinement, including: An initial hearing within 72 hours of placement, unless emergency circumstances require a continuance which may be up to an additional 48 hours; the right to appear at the hearing; the right to request assistance at the hearing by a lay advisor or other person of the incarcerated or detained person's choosing, including but not limited to other incarcerated or detained individuals when such individuals do not present an individualized and specific risk if permitted to participate, 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.

(4) VULNERABLE PERSONS. If the incarcerated or detained person is determined to be a vulnerable person during the initial examination under subsection (2) of this section or any status examination under subsection (3)(b) of this section, then the person must not be placed in solitary confinement or must be removed from solitary confinement and, if necessary, transferred to an appropriate residential treatment unit, medical unit, or other appropriate or specialized unit designated by the secretary or the person in charge of the detention facility. If the person is identified as a vulnerable person due to having a mental disorder or developmental disability, as identified in RCW 72.09.015, the person may also be screened by a qualified medical provider for transfer to the least restrictive appropriate short-term care or psychiatric facility designated by the department of social and health services and transferred to such facility if the requirements in RCW 72.68.031 have been met.

NEW SECTION.  Sec. 6. A new section is added to chapter 72.09 RCW to read as follows:

(1) An incarcerated or detained person may be placed in solitary confinement for medical isolation if the facility medical director determines, based on a personal examination, that such confinement is necessary for medical reasons, which may include, but are not limited to, responding to a medical or mental health emergency, and no less restrictive intervention is sufficient to protect health and safety. Conditions of solitary confinement under this section must be the least restrictive possible and must be in compliance with prevailing public health guidance including, but not limited to, guidance from the United States centers for disease control and prevention and the Washington state department of health.

(2) For any person placed in solitary confinement under this section, an in-person clinical assessment must be conducted at clinically appropriate intervals as determined by a qualified medical provider, provided such assessments occur no less frequently than every 12 hours. A person in solitary confinement under this section must be placed in a general population living unit, a residential treatment unit, a close observation unit, or a medical unit designated by the secretary, as deemed clinically appropriate by the attending qualified medical provider in consultation with the facility medical director.

(3) A person may not be placed in solitary confinement under this section for more than 15 consecutive days and for more than 45 cumulative days during a single fiscal year, unless a qualified medical provider determines that additional time is necessary: To prevent the spread of a disease and continued medical isolation is consistent with applicable United States centers for disease control and prevention or Washington state department of health guidelines; to facilitate the provision of medical treatment to the person; or for some other clearly stated medical purpose. If additional time is deemed necessary, the medical provider shall document specific reasons why the isolation is required and why less restrictive interventions are insufficient to accomplish the safety of incarcerated or detained persons in the facility. Such notice must be forwarded to the facility medical director and superintendent of the correctional facility or person in charge of the detention facility for consideration and final approval.

NEW SECTION.  Sec. 7. A new section is added to chapter 72.09 RCW to read as follows:

(1) An incarcerated or detained person may be voluntarily placed in solitary confinement if: The person has capacity to make an informed decision about placement in solitary confinement; there is reasonable cause to believe that solitary confinement is necessary to prevent reasonably foreseeable harm; and the person voluntarily requests such confinement conditions.

(2) A person may be placed in solitary confinement under this section only if the person provides informed consent. Whenever possible, a person's request for placement in solitary confinement must be in the form of a written request. If an incarcerated or detained person initiates an informed request for solitary confinement under this section, the correctional or detention facility must document the request and has the burden of establishing a basis for refusing the request. The department or the detention facility shall maintain a written record of any request provided under this section. Prior to declining a request or removing a person who previously requested solitary confinement under this section, the department or the detention facility shall provide the incarcerated or detained person with a timely, fair, and meaningful opportunity to contest the decision. A person in solitary confinement under this section may revoke his or her request to such confinement conditions, in which case the correctional or detention facility must document the request and the person must be transferred to a less restrictive intervention or other appropriate setting within 15 days.

(3) LESS RESTRICTIVE INTERVENTION. The department or the detention facility shall make a less restrictive intervention available to any incarcerated or detained person requesting solitary confinement who meets the standard under subsection (1) of this section, which may include provision of accommodations in the general population, a transfer to the general population of another institution or to a unit designated for persons who face similar threats, or other specialized housing, as appropriate. A transfer to an out-of-state facility is not a less restrictive intervention under this section unless such a transfer is requested by the incarcerated or detained person. The department or the detention facility shall notify the incarcerated or detained person of the available less restrictive intervention when receiving any request under subsection (1) of this section and shall formulate an individualized intervention plan that addresses the support or services the person may need to move to a less restrictive intervention.

(4) A person who has requested solitary confinement under this section must be assessed by a qualified medical provider every 90 days. If the qualified medical provider finds that continued placement in solitary confinement would be detrimental to the health or well-being of the person, the person must be transferred to a less restrictive intervention.

NEW SECTION.  Sec. 8. A new section is added to chapter 72.09 RCW to read as follows:

(1) The department and long-term private detention facilities shall maximize the amount of time that any incarcerated or detained person held in solitary confinement spends outside of the cell by providing outdoor and indoor recreation, education, clinically appropriate treatment therapies, and skill-building activities. Cells or other holding or living spaces used for solitary confinement must be properly ventilated, appropriately lit according to the time of day, temperature-monitored, clean, and equipped with properly functioning sanitary fixtures.

(2) The department and any long-term private detention facility may not deny an incarcerated or detained person held in solitary confinement access to food, water, or any other basic necessity, or access to appropriate medical care, including emergency medical care.

(3) The department and any long-term private detention facility may not deny an incarcerated or detained person held in solitary confinement access to the telephone, personal communication or media devices, reading materials, or personal hygiene items unless an individualized assessment determines that limitation of such items is directly necessary for the safety of the person or others. The department and any long-term private detention facilities may use restraints upon a person in solitary confinement to facilitate movement or programming if an individualized assessment determines such restraint is directly necessary for the safety of the incarcerated or detained person or others.

(4) The department and any long-term private detention facility may not directly release an incarcerated or detained person from solitary confinement to the community, unless it is necessary for the safety of the person, staff, other incarcerated or detained persons, or the public, or in circumstances in which the person requires an immediate release due to resentencing.

(5) The department and any long-term private detention facility may not place an incarcerated or detained person in solitary confinement based on the 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.

NEW SECTION.  Sec. 9. A new section is added to chapter 72.09 RCW to read as follows:

(1) By April 1, 2024, the department and all long-term private detention facilities shall review the status of each incarcerated or detained person in solitary confinement. The department and detention facilities shall develop a plan to transition those incarcerated or detained persons to less restrictive interventions or other appropriate settings. Any person who has been in solitary confinement for longer than 120 days in the prior 12 months as of July 1, 2024, must have a trauma-informed, culturally appropriate individualized intervention plan to facilitate a transition to a less restrictive intervention, which may include an evaluation for possible single cell placement, access to and treatment by medical and mental health providers, peer supports, substance abuse programming, restorative justice programming, behavioral programming, or other individualized interventions or accommodations.

(2) By January 1, 2024, the secretary shall adopt any rules or policies necessary to implement sections 4 through 8 of this act, including for the purposes of:

(a) 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 may be imposed only after an individualized assessment that determines restrictions are directly necessary for the safety of the incarcerated person or others, and that there may not be restrictions on access to food, basic necessities, or legal access;

(c) Requiring training of staff working with incarcerated persons in solitary confinement and requiring that this training include: Assistance from appropriate professionals to periodically train all staff working with incarcerated persons in solitary confinement and alternatives to such confinement; and the identification and response to incarcerated persons in need of physical accommodations who have been referred to solitary confinement;

(d) Requiring documentation of all decisions, procedures, and reviews of incarcerated persons placed in solitary confinement;

(e) Requiring monitoring of compliance with all rules and policies governing cells, units, and other places where incarcerated persons are placed in solitary confinement;

(f) Establishing procedures for hearings under section 5(3)(b) of this act; and

(g) Requiring posting on the official website of the department monthly reports, beginning April 1, 2024, on the use of solitary confinement, including: The rate of solitary confinement by category, age, sex, gender identity, ethnicity, or incidence of a mental disorder; the number of people released from solitary confinement directly to the community; the mean and median period of solitary confinement at each facility, including the population on the last day of each quarter and a nonduplicative cumulative count of people exposed to solitary confinement for each fiscal year; the incidence of self-harm, suicide, and assault in any solitary confinement unit; and the number of people held in medical isolation. Reports may not include personally identifiable information regarding any incarcerated person.

(3) Prior to April 1, 2024, long-term private detention facilities must implement policies modeled off of the rules adopted by the department under this section.

(a) The number of times solitary confinement was used;

(b) The circumstances leading to the use of solitary confinement; and

(c) For each instance of solitary confinement:

(i) Whether the imposition of solitary confinement was the result of a disciplinary segregation, administrative segregation, or protective custody;

(ii) The length of time the individual remained in solitary confinement;

(iii) Whether a supervisory review of the solitary confinement occurred and was documented;

(iv) For disciplinary segregation, whether a due process hearing was conducted and the results;

(v) Whether a medical assessment or review and a mental health assessment or review were conducted and documented; and

(vi) Whether the affected person was afforded meaningful access to education, programming, and ordinary necessities such as medication, meals, and reading material during the term of solitary confinement.

(2) Information collected under subsection (1) of this section must be compiled into a monthly report and submitted to the Washington association of sheriffs and police chiefs.

(3) For the purposes of this section, "solitary confinement" means confinement of an incarcerated person alone in a cell or similarly confined holding or living space for 20 hours or more per day under circumstances other than a partial or facility-wide lockdown.

(4) This section expires December 31, 2024.

(2) This section expires December 31, 2024.

(a) Develop a staffing needs assessment, detailing the number of personnel that will be needed to provide adequate security for all incarcerated persons, correctional officers and other staff, and outside visitors, when the restrictions on solitary confinement are imposed under this act;

(b) Develop a corrections capital facilities master plan that outlines the capital investments needed to accommodate the objectives of this act, while providing for the health and safety of all incarcerated persons, correctional officers and other staff, and outside visitors, when the restrictions on solitary confinement are imposed under this act;

(c) Provide a profile of currently incarcerated persons who are or have been housed in restrictive housing during the 2023-2025 fiscal biennium, including information regarding their underlying offenses and any sanctions imposed during their incarceration, and the amount of time they have remaining in total confinement;

(d) Document any attempted suicides by individuals in restrictive housing over the past ten years and the reason, if known; and

(e) Provide an inventory of currently incarcerated persons who are or have been housed in restrictive housing and who have been transferred or have been considered for transfer to an out-of-state correctional facility.

(2) The department of corrections must compile the information detailed in subsection (1) of this section into a report which must be submitted, in compliance with RCW 43.01.036, to the governor and the appropriate committees of the legislature by December 1, 2023.

(3) This section expires December 31, 2024.

NEW SECTION.  Sec. 15. Sections 1 through 8 of this act take effect July 1, 2024.

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