Testimony of Khalil Sulker, Strategic Organizer for Community Safety and Restorative Justice, Before the Board of Corrections Hearing on Proposed Restrictive Housing Rules

Thank you for your ongoing work to demand accountability of the NYC Department of Correction and for initiating this rulemaking process concerning restrictive housing in correctional facilities and compliance with Local Law 42, to ban solitary confinement by all names and in all forms. I appreciate the opportunity to testify on behalf of New York City Comptroller Brad Lander. My name is Khalil Sulker, Strategic Organizer for Community Safety and Restorative Justice in the Comptroller’s Office.

This is an important moment for our city. Here, we are able to actualize the efforts of criminal justice advocates and survivors of solitary confinement by banning this practice that the UN has rightly deemed torture. Solitary confinement has stolen the lives of Kalief Browder, Layleen Polanco, Brandon Rodriguez, Elijah Muhammad, Erick Tavira, Bradley Ballard, Jason Echeverria, and countless others. Despite the best intentions of jail managers and DOC staff, solitary confinement worsens safety for everyone, including outside communities, by causing people to deteriorate, increasing the risk of harm inside jails and after people return home.

When Comptroller Lander visited Rikers last June, he witnessed incarcerated people shackled hand and foot to desks in Enhanced Supervision Level 1 housing –– and people held in conditions akin to solitary confinement with no clear protocols on how they could get out. Our office commends the City Council for joining with organizers of the HALT Solitary campaign to pass a ban on solitary confinement by a supermajority vote. We urge this body to adopt its rules in line with Local Law 42 and for DOC to fully implement Local Law 42 in order to finally end solitary confinement and replace it with alternative forms of separation scientifically proven to reduce violence and better protect people’s health and well-being.

These proposed rules, if adopted, would ensure compliance with the law including but not limited to requiring that all people in custody have 14 hours of out-of-cell time and would define out-of-cell time as time spent in a space conducive to meaningful social interactions. This would include offering trauma-informed, age-appropriate programming and services on a consistent, regular basis.

Additionally, they would restrict de-escalation and emergency lock-ins to a maximum of four hours, with regular rounding and mental health checks required. The proposed rules also codify protections with respect to due process, including the requirement that to be placed in restrictive housing individuals are afforded a hearing, at which they are entitled to have legal representation, and that refusals to attend hearings be videotaped. The Comptroller, who remains deeply committed to increasing public transparency of DOC operations, also welcomes the new reporting requirements of the proposed rules that fulfill the requirements of Local Law 42, and the provision that prevents DOC from requesting variances to these standards.

As Chief Accountability Officer, Comptroller Lander champions the full implementation of Local Law 42. To further strengthen the proposed rule, and ensure that the spirit of the law is faithfully executed, he also urges the Board to include the following technical provisions:

1. Revisiting the changes to section 1-05, to make sure that all provisions are as explicit as they are in Local Law 42, including that: a) all people in the jails, other than while people are in de-escalation confinement or emergency lock-ins, must have access to at least 14 hours of daily out-of-cell time; and b) the minimum out-of-cell requirements under the rules still apply to people in contagious disease units, with appropriate caveats in Local Law 42 for how such out-of-cell time can take place in line with appropriate medical protections and treatment.
2. Revisiting the changes to section 6-19 to make clear that a) for the seven-hour programming requirement, everyone is entitled to such programming outside of a cell in a group setting; and b) all programming time shall be led by therapeutic staff, programming staff, outside community groups, or peers.
3. Adding specific requirements for how the Department shall carry out the legal representation requirement as detailed in the public comments by public defender organizations, who will be providing much of that legal representation, including processes for notifying defense offices, rules for providing discovery, options for both in-person and virtual hearings and how each would work, and timelines for the entire process.

In summary, the Board should adopt its proposed restrictive housing rules, with the above modifications, on June 25 so that the rules are in effect on July 28, the effective date of Local Law 42.

Thank you again for the opportunity to submit testimony.

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