2025 SESSION

INTRODUCED

25104420D

HOUSE BILL NO. 2647

Offered January 14, 2025

A BILL to amend and reenact § 53.1-39.2 of the Code of Virginia, relating to state correctional facilities; use of restorative housing or isolated confinement; restrictions.

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Patrons—Keys-Gamarra, Cole, Seibold, Hernandez and McClure

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Referred to Committee on Public Safety

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Be it enacted by the General Assembly of Virginia:

1. That § 53.1-39.2 of the Code of Virginia is amended and reenacted as follows:

§ 53.1-39.2. Restorative housing and isolated confinement; restrictions on use.

A. As used in this section:

"Facility administrator" means the superintendent, warden, or person otherwise in charge of the correctional facility.

"Isolated confinement" means confinement of an incarcerated person to a cell for 17 hours or more per day, regardless of the name of the housing unit in which such confinement occurs.

"Lockdown" means the restriction of movement and privileges for an entire pod, housing unit, or facility, such that all individuals therein are confined to their cells for 20 or more hours per day and out-of-cell programmatic interventions are interrupted.

"Medical evaluation" means an evaluation that is done for the purpose of determining whether the incarcerated person needs medical treatment and shall be done in a manner that is consistent with the signed recommendations of a medical practitioner.

"Medical practitioner" means a physician, physician's assistant, nurse practitioner, or practical nurse licensed in the Commonwealth or in the jurisdiction where the treatment is to be rendered or withheld.

"Mental health evaluation" means an evaluation that is carried out by a mental health professional for the purpose of determining the mental health needs of the incarcerated person and whether it is safe for the person to be placed in restorative housing.

"Mental health professional" means the same as that term is defined in § 54.1-2400.1 who is trained in mental health evaluations.

"Out-of-cell programmatic intervention" means (i) educational, vocational, rehabilitative, or therapeutic instruction for an incarcerated person in a congregate setting with other incarcerated persons or (ii) medical, mental health, or other social service provided by one or more staff members to an incarcerated person individually.

"Recreation" means the space and opportunity for meaningful physical activity outside the cell and housing unit.

"Restorative housing" means special purpose bed assignments operated under maximum security regulations and procedures and utilized for the personal protection or custodial management of an incarcerated person.

B. No incarcerated person in a state correctional facility shall be placed in restorative housing or in isolated confinement by any designation for longer than 15 consecutive days, including any investigative time, in any 60-day period, unless (i) such incarcerated person requests placement in restorative housing or isolated confinement with informed voluntary consent,; (ii) such incarcerated person needs such confinement for his own protection, as determined and documented by the facility administrator or his designee; (iii) there is a need to prevent an imminent threat of physical harm to the incarcerated person or another person, as determined and documented by the facility administrator or his designee; or (iv) the placement is necessary for medical isolation, as determined and documented by a licensed medical professional; or (v) such person's behavior threatens the orderly presents a substantial threat to the safe operation of the facility, provided that: and cannot be resolved through placement in any less-restrictive setting, as determined and documented in detail by the facility administrator or his designee.

1. When an incarcerated person makes a request to be placed in restorative housing or isolated confinement for his own protection, the facility shall bear the burden of establishing a basis for refusing the request; but before placing an incarcerated person in restorative housing or isolated confinement of any designation for his own protection, the facility administrator shall place an incarcerated person in a less-restrictive setting, including by transferring such incarcerated person to the general population of another facility or institution or to a special-purpose housing unit for incarcerated persons who face similar threats, unless such incarcerated person faces a security risk so great that no less-restrictive setting would be sufficient or practicable to ensure the incarcerated person's safety.

2. An incarcerated person who is in restorative housing or isolated confinement for his own protection based on his request or with his informed voluntary consent may opt out of restorative housing or isolated confinement by voluntarily removing his consent to remain in restorative housing or isolated confinement by providing informed voluntary refusal;. Within 48 hours of the submission of such informed voluntary refusal, the facility administrator shall provide such incarcerated person with safe placement outside of restorative housing or isolated confinement.

3. An incarcerated person placed in restorative housing or isolated confinement for his own protection (i) shall receive similar equivalent opportunities for out-of-cell programmatic interventions, recreation, physical activities, movement, and social interaction, taking into account without directly risking his safety and the safety of others, as are provided to incarcerated persons in the general population of the facility and (ii) shall have such placement reviewed for assignment into protective custody;.

4. An incarcerated person who has been placed in restorative housing or isolated confinement for his own protection and is subject to removal from such confinement, not by his own request, shall be provided with a timely and meaningful opportunity to contest the removal; and.

5. In any situation in which the facility administrator determines that an incarcerated person shall be placed in isolated confinement to prevent an imminent threat of physical harm to such incarcerated person or another person, such incarcerated person may be placed in isolated confinement for no longer than 15 consecutive days, including any investigative time period. An incarcerated person may be placed in an additional period of isolated confinement not to exceed a single period of 15 consecutive days only in those situations where a new, documented incident of behavioral misconduct occurs after the completion of the initial period of isolated confinement and such behavioral misconduct creates an imminent threat of physical harm to the incarcerated person or another person and such threat cannot be alleviated through any less-restrictive measures.

6. An incarcerated person who has been placed in restorative housing, isolated confinement, or any other population without full privileges shall be offered a minimum of four hours of out-of-cell programmatic interventions or other congregate activities per day, including classes, work assignments, or therapeutic treatment, aimed at promoting personal development or addressing underlying causes of problematic behavior, which may include recreation. Such out-of-cell programmatic interventions and congregate activities shall be consistent with those offered to the full-privilege general population at other facilities of equal risk. Additionally, a minimum of one hour of recreation shall be provided and shall take place in a congregate setting, unless exceptional circumstances mean that doing so would create significant and unreasonable risk to the safety and security of other incarcerated persons, the staff, or the facility.

C. 1. If an incarcerated person is placed in restorative housing or isolated confinement pursuant to subsection B, (i) such placement shall be reviewed once a week every 48 hours and the reason why a less restrictive setting could not be utilized, including the facts and circumstances that necessitated the incarcerated person's placement in restorative housing or any form of isolated confinement, shall be recorded in writing by the facility administrator and placed in the incarcerated person's institutional file; (ii) the facility administrator shall ensure that an incarcerated person receives a medical and mental health evaluation from certified medical and mental health professionals within one working day of placement in restorative housing or any form of isolated confinement; (iii) the facility administrator shall document an action plan and timeline for transitioning the incarcerated person out of restorative housing or isolated confinement as soon as safely possible and at the earliest opportunity; and (iii) (iv) the facility administrator shall document the date and duration of such placement, as well as the statutory basis under this section for such placement, and include all such documentation in the incarcerated person's institutional file; and (v) the facility administrator shall notify the regional administrator in writing that the incarcerated person was placed in isolated confinement in accordance with this subdivision within 24 hours of such placement.

2. An incarcerated person placed in isolated confinement shall be present at any formal reviews held regarding such placement. Such incarcerated person shall be (i) informed of any reason or reasons the facility administrator or other official believes isolated confinement remains necessary, (ii) given an opportunity to respond to such reason or reasons, and (iii) provided with the formal ruling within 24 hours of such review. Any incarcerated person in isolated confinement shall have a chance to formally appeal such ruling within 24 hours of receipt and shall receive a response to such appeal within 24 hours of the submission of such appeal. Such formal review and appeal, including any response by the incarcerated individual and reasons for continued isolated confinement, shall be documented. Such formal review shall be conducted by a multidisciplinary team that shall include at least one non-security advisor for the incarcerated individual, at least one certified mental health professional, and at least one certified medical professional.

D. An incarcerated person may be offered less than four hours of out-of-cell programmatic interventions or other congregate activities per day only in the circumstance that the facility administrator determines a lockdown is required to ensure the safety of the incarcerated persons in the facility. Any lockdown covering all or part of any facility shall (i) require that a specific and necessary security purpose be served that cannot be achieved without confinement and interruption of out-of-cell programmatic interventions; (ii) be documented, including the purpose of such lockdown; (iii) end as soon as such documented purpose is served; (iv) last no longer than seven days unless the facility administrator formally requests and receives permission from the regional administrator before seven days have passed; (v) have a documented timeline and standard of completion when lasting more than seven days; and (vi) not occur more than once within 30 days without approval from the regional administrator confirming that a new, specific, and documented security risk has developed that warrants such extensive lockdowns, including the reason security cannot be maintained without additional lockdown time. Such documentation shall be provided to the Director and shall be published on the Department's website.

E. The facility administrator shall ensure that any incarcerated person placed in restorative housing, for any reason, is provided with a medical evaluation and a mental health evaluation within one workday of such placement, unless such evaluation was completed within the previous week.

F. The facility administrator shall have a defined and publicly available policy and procedure for the process of transitioning an incarcerated person placed in restorative housing out of such restorative housing and back to the general population of the facility, subject to the approval of the Director.

G. Nothing in this section shall be construed to prevent the placement of incarcerated persons in protective custody settings that do not constitute restorative housing.

H. The Director shall develop policies and procedures to effectuate the provisions of this section.