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Model Stop Solitary Act ACLU 2011

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Model Act
Improving Public Safety, Protecting Vulnerable Populations &
Ensuring Process in Imposing Long-Term Isolated Confinement

Things in < > may need to be changed in order to be applicable in a specific state. It
will be important to study carefully the existing statutes and regulations in your state to
understand what aspects of current law might need to be changed, to ensure that any
proposed legislation addresses those concerns without weakening current law, and to
understand the operations of the correctional system in your jurisdiction.
The <Director/Commissioner> shall ensure that prisoners are treated in accordance
with the minimum standards for humane treatment established in this section.
1. Definitions. As used in this section, unless the context otherwise indicates, the
following terms have the following meanings:
a. A person with “serious mental illness and other significant mental
impairment” is a person with a substantial disorder of thought or mood that
significantly impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life, including individuals
found to have current symptoms or who are currently receiving treatment
for the following:
i. Types of Diagnostic and Statistical Manual IV (DSM-IV) Axis I
1. Schizophrenia (all sub-types)
2. Delusional Disorder
3. Schizophreniform Disorder
4. Schizoaffective Disorder
5. Brief Psychotic Disorder
6. Substance-Induced Psychotic Disorder (excluding
intoxication and withdrawal)
7. Psychotic Disorder Not Otherwise Specified
8. Major Depressive Disorders
9. Bipolar Disorder I and II
ii. Persons diagnosed with a mental disorder that includes being
actively suicidal.


Comment [A1]: The following definition is based
on two seminal federal cases: USA v. Michigan
(No. G84-63CA, W.D. Mich., 1996) and Madrid v.
Gomez (889 Supp. 1146, N.D. CA, 1995).

iii. Persons diagnosed with a serious mental illness that is frequently
characterized by breaks with reality, or perceptions of reality that
leads the individual to significant functional impairment.
iv. Persons diagnosed with an organic brain syndrome which results in
a significant functional impairment if not treated.
v. Persons diagnosed with a severe personality disorder that is
manifested by frequent episodes of psychosis or depression, and
results in significant functional impairment.
vi. Persons diagnosed with mental retardation with significant
functional impairment.
b. “Mental Health Clinician” means a psychiatrist, psychologist, social worker
or nurse practitioner who is licensed by the <State Department of Mental
c. “Isolated confinement” means prolonged cell confinement (23 hours or
more per day) with very limited out-of-cell time and severely restricted
activity, movement, and social interaction, whether pursuant to
disciplinary, administrative, or classification action. Such housing is often
referred to as “disciplinary segregation,” “administrative segregation,”
“special housing” or “super-maximum security housing.”
d. “Long-term isolated confinement” means “isolated confinement” that is
expected to extend or does extend for a period of time exceeding 30 days
e. “Mental health and special needs step down units” are residential,
therapeutic housing units within a correctional facility that provide clinically
appropriate and habilitative programming to <prisoners> with severe
mental illness or other significant mental impairment in lieu of housing in
administrative or disciplinary segregation units.
2. Creating a Balanced Approach to the Care, Treatment and Management of
<Prisoner>s with Serious Mental Illness and <Prisoner>s with Other
Significant Mental Impairments.
a. No <prisoner> with serious mental illness or other significant mental
impairment shall be housed in long-term isolated confinement, nor shall
such <prisoner>s currently subject to such confinement be permitted to
stay there.


b. Prior to placement in long-term isolated confinement for either a
disciplinary infraction or a non-punitive reason, a <prisoner> shall be
evaluated by a mental health clinician to determine if he/she is seriously
mentally ill or has another significant mental impairment as defined in this
Act. If the mental health clinician makes such a finding, the <prisoner>
shall be diverted from long-term isolated confinement to a mental health
step-down unit, a prison mental hospital, or other appropriate housing that
does not include long-term isolated confinement.
c. <Prisoner>s with serious mental illness or other significant mental
impairment may be subject to discipline, but the discipline shall be
handled by a collaboration between mental health clinicians, other
required medical staff and custody staff in a mental health or special
needs step-down unit. Any punishment must work within the individual’s
mental health or habilitation treatment plan. The mental health or
habilitation treatment plan shall be developed by a mental health clinician
or other required medical staff in accordance with best practices and shall
be explained to the <prisoner> by the mental health and/or medical
clinicians. The mental health or habilitative treatment plan shall be
updated immediately after a <prisoner> is placed in a mental health or
special needs step-down unit and at least every 30 days thereafter by a
mental health clinician and other pertinent mental health and/or medical
d. The mental health step-down unit and special needs step-down unit shall
be physically separate from any long-term isolated confinement unit and
shall not be operated as a disciplinary housing unit. Decisions about
treatment and conditions of confinement shall be made based upon a
clinical assessment of the therapeutic and habilitative needs of the
<prisoner> and maintenance of adequate safety and security on the unit.
<Prisoner>s in the mental health step-down unit and special needs stepdown unit shall be offered at least four hours a day of structured out-of-cell
therapeutic programming and/or mental health treatment, except on
weekends or holidays, when such programming and/or treatment may be
limited to two hours a day. <Prisoner>s in these units shall also be given
a minimum of one-hour of out-of-cell daily exercise, including access to
outdoor recreation when the weather permits, in addition to other out-ofcell activities consistent with their mental health and habilitative needs.
e. <Prisoner>s shall also receive clinical visits by mental health clinicians
and habilitative medical personnel as part of their treatment program in the
mental health and special needs step-down unit. These visits shall be

conducted in a clinical environment that ensures privacy. These visits
shall never be conducted at cell-front.
f. <Prisoner>s in mental health and special needs step-down units shall not
be subject to discipline reports for refusing treatment or medications or for
engaging in self-harming behavior and threats of self-harming behavior,
including related charges for the same behaviors, such as destruction of
state property, except in exceptional circumstances where the <discipline
committee> of the institution determines in writing that the safety and
security of the institution was compromised by the <prisoner’s> actions
and the prisoner evinced malicious intent.
g. <Prisoner>s in a mental health or special needs step-down unit shall
receive property, services and privileges similar to <prisoner>s confined in
the general prison population, provided, however, that the <Department>
may impose limitations more restrictive than those imposed on the general
population for security reasons in the following areas: (1) the quantity and
type of property <prisoner>s in the mental health or special needs stepdown units are permitted to have in their cells; and (2) <prisoner> access
to programs. In consultation with a mental health clinician or other
medical staff, the <Department> may impose restrictions on an individual
<prisoner>’s property, services or privileges for therapeutic and/or security
reasons which are not inconsistent with the <prisoner>’s mental health or
habilitative needs. If any such restrictions are imposed on a particular
<prisoner>, they shall be documented in writing and shall be reviewed by
the mental health or medical clinician not less than every thirty days after
a restriction is imposed or continued. The review shall be for the purpose
of eliminating the restriction as soon as clinically appropriate.
h. Within 30 days of a <prisoner’s> placement in a mental health or special
needs step-down unit and every 30 days thereafter or sooner if deemed
necessary, a joint case management committee shall meet to review the
<prisoner>’s placement in the unit and his or her progress in the unit’s
programs and what adjustments to programming may need to be made to
assist the <prisoner> in making progress, and to decide whether
continued placement in the unit is warranted, whether additional privileges
can be granted to the <prisoner> while in the unit, or whether the
<prisoner> should be moved to less restrictive housing. If the committee
decides to continue the <prisoner>’s placement, it shall make specific
written findings as to why the placement must be continued and what the
<prisoner> needs to do in order to be granted additional privileges and
movement out of the mental health or special needs step-down unit.

These findings shall be given to the <prisoner> and explained so that
he/she understands them. The joint case management committee shall
be composed of a mental health and/or habilitation clinician, a unit staff
member, the facility’s <warden, superintendent, or designee>, the
<Department’s Director of Mental Health>, and other staff considered

3. Providing Necessary Training to Corrections Staff Managing the
Challenges of Working Effectively with <Prisoner>s with Serious Mental
Illness and <Prisoner>s with Other Significant Mental Impairments
a. The <Department of Corrections> shall ensure that the curriculum for new
corrections officers, and other new department staff who will regularly
work in programs providing mental health treatment for <prisoner>s, shall
include at least eight hours of training about the types and symptoms of
mental illnesses and other significant mental impairments; recognition of
adverse reactions to psychotropic medication; recognition of mental health
emergencies and specific instructions on contacting the appropriate
professional care provider and taking other appropriate action; suicide
potential and prevention; precise instructions on procedures for mental
health and other medical referrals; the goals of mental health and
habilitation treatment; training in how to effectively and safely manage
<prisoner>s with mental illness or with other mental impairments; the
impacts of long-term isolation on human beings generally; and any other
training determined to be appropriate. Any <Department> staff working in
a mental health or special needs step-down unit shall be screened to
determine the appropriateness of the placement and shall receive the
basic training referenced above and a minimum of forty hours of additional
training, plus twelve hours of annual training as long as they work in such
a unit.
The <Department of Corrections> shall provide additional training on
correctional care and custody of <prisoner>s with mental illness and/or
other significant mental impairments and related topics on an ongoing
basis as community standards of care change or as otherwise deemed
4. Improving Disciplinary Outcomes and Ameliorating the Psychological
Impacts of Long-Term Isolated Confinement.


Long-term isolated confinement can cause severe, lasting psychological
consequences and pain, even for individuals who do not have serious mental
illness or other significant mental impairments at the outset of confinement. In
order to prevent such harm, the following protections and limitations shall be put
in place:
a. Long-term isolation shall not be used as a form of housing for <prisoners>
who are under the age of eighteen (18) or subject to “protective custody,”
“involuntary protective custody,” “administrative segregation,” or other
form of non-punitive housing. If the safety and security of the <prisoner>
require greater cell confinement than is typical for <prisoners> in general
population housing, then the restrictions to which such <prisoners> are
subject must be the least restrictive to maintain the safety of the
<prisoner> and the institution. At a minimum, such <prisoners> shall be
offered access to educational and programming opportunities consistent
with the <prisoners’> safety and security and any federal and state law
requirements; at least four hours a day of out-of-cell time, including a
minimum of one-hour of out-of-cell daily exercise that includes access to
outdoor recreation when the weather permits; access to personal property,
including TVs and radios; access to books, magazines, and other printed
material; access to daily showers; and access to the same number of
visits and phone calls allowed for general population <prisoners>.
b. Any time a <prisoner> is classified, assigned or subject to long-term
isolation, there must be a stated, legitimate purpose for such placement in
writing. A <prisoner> may only be subject to long-term isolated
confinement if he or she is determined, pursuant to the process set forth in
section 4(b) of this Act, to have committed one or more of the following
acts while incarcerated within the preceding five years:
i. An act of violence that either: (1) resulted in or was likely to result in
serious injury or death to another, or (2) occurred in connection with
any act of non-consensual sex;
ii. Two or more discrete acts which caused serious disruption of
prison operations;
iii. An escape, attempted escape, or conspiracy to escape from within
a security perimeter or custody, or both.
c. Prior to being classified, assigned or subject to long-term isolation, a
<prisoner> shall be entitled to a hearing, unless the <Director of
Corrections or a Deputy Director> certifies, in writing, that providing a

hearing prior to transfer will pose an imminent threat to the safety and
security of the prison where the <prisoner> is currently housed. If such a
certification is made, the hearing shall be conducted within 5 business
days of the commencement of isolation. At the hearing, the
<Department> shall have the burden of proving that the requirements set
forth in section 4(b) of this Act have been satisfied. Such burden shall be
a preponderance of the evidence and these minimal procedures shall
i. The <prisoner> must receive written and effective notice at least 48
hours before the hearing that such placement is being considered,
the facts upon which consideration is based, and the <prisoner>’s
rights under this Act and any regulations or policies promulgated
under this Act;
ii. The <prisoner> shall have the right to personally appear before the
committee making the placement decision;
iii. The <prisoner> shall have the right to submit documentary
evidence to the committee;
iv. The <prisoner> shall have the right to call witnesses and crossexamine witnesses, unless there is a specific, written findings by
the committee that calling or cross-examining a specific witness will
jeopardize the safety and security of the institution, if such a finding
is made, then the <prisoner> shall be able to propound questions to
be relayed to the witness or witnesses;
v. The <prisoner> shall have a right to an interpreter, if necessary for
the <prisoner> to understand or participate in the proceedings;
vi. If the committee determines that a <prisoner> is unable to prepare
and present evidence and arguments effectively on his or her own
behalf, or if the <prisoner> makes a request, counsel or some other
appropriate advocate for the <prisoner> shall be appointed;
vii. The <prisoner> shall have the right to retain a lawyer at his own
expense to represent him or her at the hearing;
viii. The hearing shall be recorded by means of audio, digital recording
or video tape, and the tapes shall be preserved until 120 days after
the release of the <prisoner> from long-term isolation;


ix. The committee shall issue a written decision setting forth the
evidence relied on and the reasons for its decision within five
business days of the hearing;
x. The <prisoner> shall have the right to prompt review of the
committee’s decision by the <Warden of the receiving facility>, who
shall respond to any appeal of a committee decision in writing
within 14 business days of the date the appeal is submitted by the
xi. If the <prisoner> is unsatisfied with the decision by the <Warden of
the receiving facility>, he may submit an appeal in writing within 14
business days of the date he receives the <Warden’s decision> to
the <Director of Corrections>. The <Director> shall respond to any
appeal of a <Warden’s> decision in writing within 14 business days
of the date the appeal is submitted by the <prisoner>;
xii. The committee will be appointed by the <Director>, and shall
include at least three persons.
d. Determinate sentencing to long-term isolation shall not be allowed. The
<Department> shall institute a program that allows a <prisoner> subject to
long-term isolation to earn his/her way out of such housing through
positive behavior. The trajectory for <prisoner>s to earn their way out of
such housing shall be graduated and must be less than <one year/six
i. Within 30 days of a <prisoner>’s placement in long-term isolation
pursuant to the requirements of this Act, correctional authorities
shall develop an individualized plan for the <prisoner>;
ii. The plan shall include an assessment of the <prisoner>’s needs, a
strategy for correctional authorities to assist the <prisoner> in
meeting those needs, and a statement of the expectations for the
<prisoner> to progress toward fewer restrictions and eventually
back to general population housing based on the <prisoner>’s
behavior, including specific privileges which will be allowed the
<prisoner> once he/she meets certain benchmarks in his/her
iii. Correctional authorities shall provide the plan or a summary of it to
the <prisoner>, and explain it, so that the <prisoner> can
understand such expectations; at intervals not to exceed 30 days,

correctional authorities should conduct and document an evaluation
of each <prisoner>’s progress under the individualized plan
required in this sub-section. The evaluation shall consider the state
of the <prisoner>’s mental health; address the extent to which the
individual’s behavior, measured against the plan, justifies the need
to maintain, increase, or decrease the level of controls and
restrictions in place at the time of the evaluation; and recommend
whether the <prisoner> should be returned to a lower-level custody
and/or removed from long-term isolation.
e. At intervals not to exceed 90 days, a full classification review involving a
meeting of the <prisoner> and a <classification review committee> shall
occur to determine whether the <prisoner>’s progress toward compliance
with the individual plan required by this Act, or other circumstances,
warrants a reduction of restrictions, increased programming, removal from
long-term isolation and/or return to lower level custody. If a <prisoner>
has met the terms of the individual plan, the <prisoner> shall be released
from long-term isolation. A decision to retain a <prisoner> in long-term
isolation following consideration by the <classification review committee>
shall be set forth in writing and shall be reviewed by a <correctional
administrator>, and approved, rejected, or modified as appropriate.
f. In no instance shall a <prisoner> be subjected to long-term isolation for
more than one year unless the <Department> conducts a hearing in which
it establishes (1) by a preponderance of evidence that the <prisoner>,
within the previous year, has committed an act which resulted in or was
likely to result in serious injury or death to another; or (2) by clear and
convincing evidence that there is a significant risk that the <prisoner> will
cause physical injury to prison staff, other <prisoner>s, or members of the
public, if removed from long-term isolation. Association with an inmate
gang or security threat group alone shall not be sufficient to meet this
burden. <Prisoner>s who are or may be subject to retention in long-term
isolated confinement over one year will be provided with the same process
and protections set forth in Section 4(c) of this Act. If a decision is made
to house a <prisoner> in long-term isolation for longer than one year
pursuant to this section, the <Director of the Department> shall set forth in
writing all other alternatives that have been considered and why those
alternatives have been rejected, and shall set forth a plan for transitioning
the prisoner out of long-term isolation. Any <prisoner> subject to longterm isolation longer than one year shall be entitled to another hearing at
least every six months with the same protections set forth herein.

g. <Prisoner>s who are housed in long-term isolation shall be evaluated by a
mental health clinician at least every 30 days. Such evaluations shall be
confidential and conducted in-person (not through a cell door or through a
glass wall), and shall include: (1) assessment of current mental status
and condition; (2) assessment of current risk of suicide or other selfharming behavior; and (3) review of all available mental health records at
the initial assessment and any new records thereafter. Any <prisoner>
who is determined at such an evaluation to have a serious mental illness
or to suffer from another significant mental impairment shall be removed
from long-term isolation as directed by the mental health clinician, but in
any case, within 48 hours of such determination.
5. Improving Public Safety and Minimizing the Negative Effects of Long-Term
Isolated Confinement.
a. <Prisoner>s subject to isolated confinement will require a re-socialization
process before they are released back into the community. Such a resocialization program shall take place in phases, starting at least six
months before the end of a <prisoner>’s criminal sentence.
b. All <prisoner>s held in isolated confinement shall be included in this resocialization program without exception.
c. The re-socialization program shall include medical and mental health staff,
including but not limited to mental health clinicians, social workers,
education and habilitative staff to provide counseling and life skills to
prepare <prisoner>s for safe release to the community.
6. Reporting and Oversight
a. The <state oversight body> for correctional facilities shall conduct an
ongoing and comprehensive review of the policies and standards and
treatment of <prisoner>s held in long-term isolated confinement, as well
as the individual disciplinary records, to determine the effectiveness of
those policies and standards and the degree to which the treatment of
<prisoner>s held in such confinement complies with this Act. The
<oversight body> shall make findings and shall issue an annual report to
the <committees of the Legislature having jurisdiction over criminal justice
and public safety matters>.
b. The <state mental health department> shall have the responsibility for
monitoring the quality of mental health and habilitative care provided to
<prisoner>s pursuant to this Act. Inspectors designated by the

Comment [ 2]: This section will need to be
adjusted for various state set ups. Many states do not
have a specific oversight body or may have another
body that can be used to perform this function.
For example, in NY it is the state mental health
department that provides mental health treatment in
the prisons. In many states it is the department of
corrections that provides the mental health treatment.

<department> shall have direct, unannounced and immediate access to all
areas where <prisoner>s are housed in the mental health step-down units
or in any long-term isolated confinement housing, and shall have access
to the <department of correction’s> records relating to such <prisoner>s,
including but not limited to medical and mental health records, disciplinary
records, and other institutional files. The <department> and its inspectors
shall maintain the confidentiality of all patient-specific information.
c. The <state mental health department> shall appoint an advisory
committee on correctional mental health care, which shall be composed of
independent mental health experts and mental health advocates, and may
include family members of former inmates with serious mental illness or
other significant mental impairments. Such committee shall advise the
<department> on its oversight responsibilities pursuant to this section and
shall have access commensurate with the <state mental health
department>. The committee may also make recommendations to the
<department> regarding improvements to prison-based mental health
care, the mental health and special needs step-down units, the mental
health monitoring of <prisoner>s held in long-term isolated confinement,
and any policies related to ensuring that prisoners with serious mental
illness or other significant mental impairments are not subject to long-term
isolated confinement.
7. Review of the Current Status of <Prisoner>s Held in Isolated Confinement.
The <Director of Corrections> shall review the status of all <prisoner>s held in
long-term isolated confinement in the State within 90 days after the effective date
of this Act to determine whether <prisoner>s currently housed in long-term
isolated confinement should remain in those units under the terms of this Act and
to ensure that <prisoner>s held in isolated confinement more than 30 days
receive a hearing as provided in this Act. The <Director> shall report the results
of this evaluation to the <committees of the Legislature having jurisdiction over
criminal justice and public safety matters> no later than 180 days after the
effective date of this Act.
8. Review of Existing Policies and Promulgation of Regulations to Implement
this Act.
The <Director of Corrections> shall review all polices of the <Department of
Corrections> in effect on the effective date of this Act relating to <prisoner>s held

in long-term isolated confinement and update those policies as necessary to
conform to this Act within <180 days> of the effective date of this Act. The
<Department of Corrections> shall promulgate such regulations as are necessary
to implement this Act.