HB1738

SECTION 1. Section 353-1, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read:

""Administrative confinement" means temporary segregation of an inmate from the general population of a correctional facility when the inmate's continued presence in the general population presents an immediate threat to the safety of self or others, jeopardizes the integrity of an investigation of alleged serious misconduct or criminal activity, or endangers institutional security. "Administrative confinement" does not include protective custody.

"Disciplinary confinement" means placement of an inmate in a designated segregation housing unit in a cell separated from the general population of a correctional facility.

"Gang" means any ongoing organization, association, or group of three or more individuals, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal activity.

"Long-term confinement" means any segregation of an inmate within a cell for twenty hours or more within a twenty-four-hour period.

"Protective custody" means voluntary or involuntary segregation from the general population of a correctional facility for inmates requesting or requiring protection from other inmates."

SECTION 2. Chapter 353, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:

"§353-A Long-term confinement. (a) Long-term confinement shall not be used for administrative confinement, protective custody, and other forms of non-punitive housing.

(b) Inmates placed into long-term confinement shall have access to:

(1) Educational and programming opportunities consistent with the inmate's classification by the department and federal, state, and county laws, rules, or regulations;

(2) A minimum of four hours outside of the cell within a twenty-four-hour period; provided that of the four hours, at least one hour shall include access to indoor or outdoor recreation for exercise;

(3) The general population dining facility;

(4) The inmate's personal property, including electronics, books, magazines, and other printed material; and

(5) Telephone calls and visitation opportunities.

(c) An inmate shall not be classified, assigned, or subject to long-term confinement, unless the inmate has committed one or more of the following acts within the immediately preceding five-year period while incarcerated:

(1) One act of violence that:

(A) Resulted in or was likely to result in:

(i) Serious injury that required hospitalization; or

(ii) Death,

of another inmate or correctional personnel; or

(B) Occurred in connection with any non-consensual sexual act;

(2) Two or more acts of disruption of correctional facility operations that resulted in:

(A) The complete shutdown of a correctional facility; or

(B) Serious injury of correctional personnel that required hospitalization; or

(3) An escape, attempted escape, or conspiracy to escape from the security perimeter of a correctional facility or from custody, or both.

(d) Prior to being classified, assigned, or subject to long-term confinement, an inmate shall receive a hearing by a committee of at least three individuals assembled by the director for this purpose, unless the director certifies in writing that the hearing will pose an imminent threat to the safety and security of the correctional facility at which the inmate is being housed.

(e) If a certification under subsection (d) is made, the hearing shall be conducted within five business days from when the inmate is classified, assigned, or subject to long-term confinement. The department shall have the burden of proving an inmate has committed one or more of the acts in subsection (c) that would subject the inmate to long-term confinement.

(f) A hearing conducted pursuant to subsection (e) shall require:

(1) A minimum of forty-eight hours' written notification to the inmate that a hearing for long-term confinement is being scheduled, which shall include a list of the acts identified in subsection (c) that occurred and the policies and rights of the inmate under this section;

(2) A digital audio or video recording of the hearing, which shall be kept on file by the department for one hundred twenty days after the inmate is released from long-term confinement; and

(3) A determination by the committee in person, by video conference, or through written documentation within five business days of the hearing date; provided that the determination shall include all evidence presented by the inmate and department that was considered by the committee.

(g) An inmate shall have the following rights in a hearing conducted pursuant to subsection (e):

(1) The right to appear in person or by video conference and to address the committee;

(2) The right to submit documentary evidence to the committee for its consideration;

(3) The right to call and cross-examine witnesses; provided that if there are specific or written findings by the committee that this process may jeopardize the safety and security of the correctional facility, the inmate shall be allowed to ask questions through a designated third party;

(4) The right to an interpreter to understand and participate in the hearing;

(5) The right to have an appointed advocate to present evidence on behalf of the inmate at the inmate's request or if the committee determines that the inmate is unable to prepare and present evidence on the inmate's own behalf;

(6) The right to retain an attorney at the inmate's own expense to represent the inmate at the hearing; and

(7) The right to prompt notification of the committee's determination.

(h) An inmate may appeal a determination made by the committee by submitting an appeal in writing to:

(1) The warden of the correctional facility; provided that the warden shall respond in writing to the appeal within fourteen business days of the submission; and

(2) If the warden denies the appeal, the committee within fourteen business days of receiving the denial; provided that the committee shall respond in writing to the appeal within fourteen business days of the submission.

(i) A determination by the committee at a hearing conducted pursuant to this section shall not mandate a minimum period of time for an inmate to be classified, assigned, or subject to long-term confinement. A determination shall mandate no more than one year of long-term confinement and shall include procedures to re-enter the general population pursuant to the program instituted under subsection (j).

(j) The department shall institute a program for inmates classified, assigned, or subject to long-term confinement to re-enter the general population, including:

(1) Creating an individualized assessment and plan for an inmate to re-enter the general population, to be completed within thirty days of an inmate's placement into long-term confinement; provided that each individualized plan shall set benchmarks and good behavior requirements for the inmate to receive reduced levels of restrictions or increased privileges until the inmate completes long-term confinement;

(2) Reviewing the individualized assessment and plan by correctional personnel;

(3) Explaining the individualized assessment and plan by correctional personnel to the inmate;

(4) At least every thirty days, conducting an evaluation of the inmate by correctional personnel that includes:

(A) The inmate's progress with the individualized plan;

(B) An assessment of the inmate's mental health needs; and

(C) Recommendations on reducing levels of restrictions or increasing privileges for the inmate pursuant to the individualized plan;

(5) Establishing a long-term confinement review committee to meet with the inmate at least every ninety days and evaluate the inmate's individualized plan to determine:

(A) The inmate's progress regarding the individualized plan;

(B) Any recommended reductions in restrictions based on the inmate's progress regarding the individualized plan;

(D) Any recommended change of classification status based on the inmate's progress regarding the individualized plan; and

(6) Returning the inmate to the general population upon successful completion of the individualized plan.

(k) Inmates shall not be classified, assigned, or subject to long-term confinement for more than one year, unless the department conducts a hearing that establishes:

(1) Evidence that the inmate committed an act that resulted in or was likely to result in serious injury or death within the previous year; or

(2) Evidence that there is a significant risk that the inmate will cause physical injury to department personnel, correctional personnel, other inmates, or members of the general public; provided that association with a gang or other group that poses a security threat shall not in and of itself be used to meet the requirements of this paragraph.

(l) If an inmate is classified, assigned, or subject to long-term confinement for more than one year pursuant to this section, the department shall:

(1) Provide a written record of all alternatives to long-term confinement considered for the inmate and why the alternatives were not implemented; and

(2) Create a plan to transition the inmate out of long-term confinement.

(m) At least once every three months, any inmate subject to long-term confinement for more than one year shall be entitled to a hearing by a committee of at least three individuals assembled by the director for this purpose. The hearing shall be conducted pursuant to the procedures set forth in subsection (f).

§353-B Disciplinary confinement. (a) Disciplinary confinement shall be used only when less restrictive interventions are not available and when an inmate has committed an act identified in subsection (e) or (f).

(b) Inmates placed into disciplinary confinement shall have access to:

(1) One personal telephone call per week;

(2) A minimum of one hour per day of access to indoor or outdoor recreation for exercise; and

(3) Medical care, including emergency services.

(c) Inmates placed into disciplinary confinement shall not be subjected to additional punishments, including basic property restrictions, inhumane living conditions, or the use of excessive force.

(d) When an inmate is classified, assigned, or subject to disciplinary confinement, the act that necessitated the disciplinary confinement shall be identified in writing to the inmate.

(e) An inmate shall be subject to disciplinary confinement if the department determines that the inmate has committed one or more of the following acts:

(1) An act that violated the correctional facility's policies; or

(2) An act of violence that:

(A) Resulted in or was likely to result in:

(i) Serious injury that required hospitalization; or

(ii) Death,

of another inmate or correctional personnel; or

(B) Occurred in connection with any non-consensual sexual act.

(f) An inmate shall be subject to disciplinary confinement the department determines the inmate has committed two or more of the following acts:

(1) An act of disruption that resulted in the complete shutdown of a correctional facility;

(2) An act that resulted in serious injury of correctional personnel that required hospitalization; or

(3) An escape, attempted escape, or conspiracy to escape from the security perimeter of a correctional facility or from custody, or both.

(g) Prior to being classified, assigned, or subject to disciplinary confinement, an inmate shall receive a hearing before a committee of at least three individuals assembled by the director for this purpose. The department shall have the burden of proving an inmate has committed one or more of the acts in subsection (e) or two or more of the acts in subsection (f) that would subject the inmate to disciplinary confinement.

(h) A hearing conducted pursuant to subsection (g) shall require:

(1) The inmate to be classified, assigned, or subject to administrative confinement pursuant to section 353-C until completion of the hearing;

(2) A minimum of forty-eight hours' written notification to the inmate that a hearing for disciplinary confinement is being scheduled, which shall include a list of the acts identified in subsection (e) or (f) that occurred and the policies and rights of the inmate under this section;

(3) A digital audio or video recording of the hearing, which shall be kept on file by the department for one hundred twenty days after the inmate is released from disciplinary confinement; and

(4) A determination by the committee in person, by video conference, or through written documentation within five business days of the hearing date; provided that the determination shall include all evidence presented by the inmate and department that was considered by the committee.

(i) An inmate shall have the following rights in a hearing conducted pursuant to subsection (g):

(1) The right to appear in person or by video conference and to address the committee;

(2) The right to submit documentary evidence to the committee for its consideration;

(4) The right to an interpreter to understand and participate in the hearing;

(6) The right to retain an attorney at the inmate's own expense to represent the inmate at the hearing; and

(7) The right to prompt notification of the committee's determination.

(j) An inmate may appeal a determination made by the committee by submitting an appeal in writing to:

(1) The warden of the correctional facility; provided that the warden shall respond in writing to the appeal within fourteen business days of the submission; and

(k) The maximum length of time an inmate shall be classified, assigned, or subject to disciplinary confinement shall be fifteen days; provided that if additional time is necessary, the inmate shall be subject to the procedures for long-term confinement pursuant to section 353-A.

§353-C Administrative confinement. (a) Administrative confinement shall be used only when less restrictive interventions are not available and there is a stated, legitimate purpose for placement in administrative confinement pursuant to subsection (d).

(b) Inmates placed into administrative confinement shall have access to:

(1) One personal telephone call per day;

(2) A minimum of two hours per day of indoor or outdoor recreation for exercise;

(3) The general population dining facility;

(4) The inmate's personal property, including electronics, books, magazines, and other printed material; and

(5) Visitation opportunities.

(c) When an inmate is classified, assigned, or subject to administrative confinement, the reason or reasons for the administrative confinement shall be identified in writing to the inmate.

(d) An inmate shall be subject to administrative confinement if the department determines that there is a stated, legitimate purpose for this confinement.

(e) Prior to being classified, assigned, or subject to administrative confinement, an inmate shall receive a hearing before a committee of at least three individuals assembled by the director for this purpose.

(f) If a certification under subsection (e) is made, the hearing shall be conducted within five business days from when the inmate is classified, assigned, or subject to administrative confinement. The department shall have the burden of proving there is a stated, legitimate purposes that would subject the inmate to administrative confinement.

(g) The maximum length of time an inmate shall be classified, assigned, or subject to disciplinary confinement shall be thirty days; provided that if additional time is necessary, the inmate shall be subject to the procedures for long-term confinement pursuant to section 353-A.

§353-D Long-term confinement practices; review; report. (a) The department and the Hawaii correctional system oversight commission established under chapter 353L shall conduct ongoing reviews of the policies, standards, and treatment of inmates classified, assigned, or subject to long-term confinement to determine the effectiveness of long-term confinement practices in the State's correctional facilities.

(b) The department and commission shall submit an annual report to the governor and the legislature no later than twenty days prior to the convening of each regular session. The annual report shall include findings and recommendations regarding long-term confinement practices, including any proposed legislation on improving long-term confinement practices."

SECTION 3. Section 353-16.3, Hawaii Revised Statutes, is amended to read as follows:

"§353-16.3 Development of out-of-state Hawaii correctional facilities. Notwithstanding any other provision to the contrary, the governor, with the assistance of the director, may negotiate with any appropriate out-of-state jurisdiction for the development of Hawaii correctional facilities to reduce prison overcrowding; provided that any agreement negotiated pursuant to this section shall [be]:

(1) Be subject to legislative approval by concurrent resolution in any regular or special session[.]; and

(2) Be held to the same standards of care and health and safety policies adopted by the department, including policies and procedures for appeal for long-term confinement pursuant to section 353-A, disciplinary confinement pursuant to section 353-B, and administrative confinement pursuant to section 353-C, as applicable."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 6. Statutory material to be repealed in bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1738
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII