Prisons Are Illegally Throwing People With Disabilities Into Solitary Confinement

(“Doreen” is a pseudonym. Doreen’s mother, who spoke to New York Focus, requested that she and her daughter remain anonymous to avoid retaliation from prison officials.)

Under the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which went into effect across New York state on March 31, prisons and jails aren’t allowed to hold people with physical or mental disabilities in solitary for any length of time, for any reason. But prison staff placed Doreen in solitary confinement, isolating her in a cell for some 20 hours a day, even though she had a decade-old diagnosis for bipolar disorder and, according to her mother, a doctor at a county jail diagnosed her with schizophrenia before she entered prison last year. Albion gives her medication for both illnesses, her mother said.

Solitary confinement can take a heavy mental toll on anyone; international bodies have deemed prolonged solitary a form of torture. But people with disabilities, particularly mental illnesses, can be especially affected. The American Psychiatric Association has said that, with rare exceptions, prisons and jails shouldn’t place anyone with a serious mental illness in solitary, and that those who end up there “generally face bleak prospects of any medical improvement.”

Doreen isn’t the only person with a disability that New York prisons have been sending to solitary confinement. Data from the Department of Corrections and Community Supervision (DOCCS), which runs the state prison system, show that since HALT went into effect nearly six months ago, prisons have sent hundreds of people with mental or physical ailments to solitary, including dozens with the highest levels of health care needs.

As of September 1, four in 10 people in solitary confinement had documented mental health care needs, and more than one in 10 had conditions that required full-time mental health staff.

DOCCS has adopted internal policies at odds with HALT that allow prisons to place people with certain disabilities in solitary, New York Focus has found. Whereas HALT defined “disability” broadly, DOCCS has crafted its own definition, prohibiting solitary only for select populations among the most severely disabled.

In response to questions from New York Focus, DOCCS framed its disability policies as conforming to HALT, but referred to legal documents that do not support that contention. Legislators who sponsored the HALT bill say that DOCCS is effectively trying to write its own law.

“I don’t know why DOCCS isn’t just complying with the letter of the law. I think they’re really setting themselves up for serious litigation by not just complying,” said Julia Salazar, head of the state Senate’s corrections committee and the lead sponsor of HALT. “I think [the law] is quite clear. And I think they just don’t want to comply with it — or reckon with the fact that an enormous number of individuals in DOCCS facilities are living with a disability.”

The ban on sending people with disabilities to solitary is just one of several facets of HALT that New York prisons have been violating, with seemingly no consequences.

As New York Focus reported this month, DOCCS has been routinely ignoring the foundational tenet of HALT, which bars facilities from keeping people in solitary confinement for more than 15 consecutive days. As of September 1, more than half of those in prison solitary — 276 people — had been there for longer than the legal limit. Many more are being held in “therapeutic” alternate isolation units, which incarcerated people report often violate HALT’s standards and can function as indefinite unofficial solitary.

Before solitary, Doreen was doing relatively well in prison, her mother said. Her medication had stopped the voices in her head, and she was excelling at a boot camp-like program that was earning her time off of her sentence. But when she was put in solitary, she was kicked out of the program, her mother said.

“What is this supposed to do?” she asked. “Someone that is bipolar, schizophrenic — their mental health, sitting in a cell all day on their own. They get suicidal.”

Doreen hasn’t spoken to her mother since she was sent to solitary confinement, as the prison has taken away her phone and visitation privileges until October, her mother said. Their only way of communicating is email.

In messages, Doreen has only told her mother that solitary was “horrible.”

‘DOCCS Cannot Legislate’

At multiple junctures in the process of implementing HALT, DOCCS has watered it down. The department proposed regulations that narrow the law’s definition of disability. It described even narrower criteria that it uses internally. And on the ground, incarcerated people report that prisons are sending people to solitary using justifications that aren’t described in the law, the regulations, or the internal criteria.

Under HALT, prisons and jails cannot place certain categories of people in solitary. Among those are people who are 21 years old or younger, 55 or older, or are pregnant; in data DOCCS publishes monthly as a requirement of HALT, the department hasn’t reported placing anyone from these groups in solitary. They’re among the hundreds the law has spared from solitary over the past six months: Statewide, prisons’ official solitary confinement population dropped from over 1,600 in April of last year to between 300 and 500 since HALT’s enactment.

The protected populations also include anyone with a disability, with “disability” defined broadly: as a physical or mental impairment that “prevents the exercise of a normal bodily function” or is verifiable by a diagnostic test. The definition’s inclusiveness was deliberate.

“We wanted to cover as many people as possible,” said David Weprin, head of the state Assembly’s corrections committee and a HALT co-sponsor.

A week before HALT’s enactment date at the end of March, DOCCS proposed new department rules and regulations to comply with the law. However, as a group of 56 state legislators pointed out in a June letter to DOCCS, the regulations it proposed failed to incorporate or outright contradicted several facets of HALT.

One of the regulations’ shortcomings was an outdated clause that stipulated that a person’s disability would only protect them from solitary if it impaired their “ability to provide self-care within the environment of a correctional facility.”

That language is nowhere to be found in HALT. “DOCCS cannot legislate, that is the role of the legislature,” the legislators wrote, demanding that the added clause “be removed from the regulations.” (DOCCS has yet to revise the regulations. The department said that it is “in the process of carefully reviewing” public comments on them, but did not say when it would publish the final version.)

After proposing the HALT-violating public regulations, DOCCS came up with four categories of people whose disabilities it determined exempt them from solitary confinement, the department told New York Focus. They include people with an IQ of 70 or below; those housed in special units for people with cognitive, intellectual, chronic, or terminal conditions; people with serious “specific medical problems,” like blindness, deafness, a condition that requires a wheelchair, or one that requires supplemental oxygen; and others “assessed by a DOCCS medical provider as unsuitable” for solitary.

The categories are a far cry from HALT’s open-ended definition of disability.

When asked for a copy of the written policy that details the DOCCS-defined qualifying disabilities, the department sent a directive, published in June, that includes HALT’s definition of disability. DOCCS also sent links to the parts of state law that contain HALT’s definitions of “disability” and “special populations,” as well as the proposed HALT regulations with the outdated clause.

None of the documents or laws DOCCS sent mention the four categories that the department came up with.

Additionally, DOCCS noted that people with a “serious” mental illness — a subsection of the department’s mental health categories — are exempt from solitary confinement under state law that predates HALT. Among the mental illnesses that DOCCS qualifies as “serious” are all types of schizophrenia and bipolar disorder, raising additional questions about why Albion prison staff sent Doreen to solitary.

According to DOCCS, “staff are automatically alerted” when a person they want to send to solitary confinement is a member of a “special population” or has a “serious” mental illness, “thereby avoiding their placement in” solitary.

DOCCS claimed that its parameters for solitary-exempt disabilities are “based on a number of pre-existing laws and standards,” as well as “consultation” with the state Office of Mental Health. The Office of Mental Health told New York Focus that it “had discussions about HALT” with DOCCS, but “there was no discussion about the interpretation of disability in the legislation.”

‘It Was Clear That I Had a Disability’

As a result of its self-fashioned definition of disability, DOCCS has been sending people with some of the highest levels of medical and mental health needs to solitary confinement.

In DOCCS’s monthly data, the department breaks the statewide prison solitary confinement population down by levels of health care needs. As of September 1, the latest date for which data are available, DOCCS reported that 13 percent of the solitary population, or 72 people, were categorized as requiring either the highest or second-highest level of mental health care — at minimum, needing “housing in a facility with full-time mental health staff.” Thirty-nine percent had some documented mental health care need.

Also as of the beginning of September, DOCCS reported that two percent of the solitary population had medical needs that require 24-hour on-call doctors and nurses, while an additional 34 percent had “stable, non-life threatening medical conditions” that could be treated in an outpatient setting.