§ 6-23 Due Process and Procedural Justice.
(a) Purpose.
(1) The following minimum standards in this section are intended to ensure that people in custody are placed into restrictive housing with due process and procedural justice principles.
(2) The requirements in this section apply to people in custody who are charged with violating Department rules and may be placed in restrictive housing if they are found guilty of violating such rules.
(b) Investigations.
(1) When the Department conducts investigations into allegations of a person in custody's violation of Department rules, it shall do so promptly, thoroughly, and objectively.
(2) The investigation cannot be conducted by Department personnel who have reported, participated in, or witnessed the conduct, or who are below the rank of Captain.
(3) If the rule violation in question could lead to a subsequent criminal prosecution, the Department must inform the person interviewed that while the Department's investigation is not pursuant to a criminal proceeding, statements made by the person may be used against the person in a subsequent criminal trial. The person must also be informed of the right to remain silent and that silence will not be used against the person.
(4) All investigations shall be documented in written reports that include a description of the physical, testimonial, and documentary evidence as well as investigative facts and findings.
(5) Investigations shall commence within twenty-four (24) hours after the Department is on notice of the incident.
(6) The Department shall only proceed with adjudication of charges against a person in custody upon a determination that there is reasonable cause to believe the person has committed the infraction charged.
(c) Notice of Infraction.
(1) Prior to the disciplinary hearing provided in 40 RCNY § 6-23(d), people in custody and their legal representative or advocate must receive written notice detailing the charges against them, their rights to legal representation and to attend the disciplinary hearing, the reason for the proposed placement in restrictive housing, and any supporting evidence as soon as practicable, and no later than forty-eight (48) hours prior to the hearing. The notice must be legible, detailed, and specific and must include, at a minimum:
(i) Details as to the time and place of the rule violations charged; and
(ii) A description of the person’s actions and behavior that gave rise to the alleged violations.
(2) The Department must provide necessary assistance to any person in custody who is unable to read or understand the notice.
(3) Whenever the Department places a person into pre-hearing temporary restrictive housing, the Department must serve them notice of the infraction within twenty-four (24) hours. If extenuating circumstances prevent the possibility of service within this time frame, the Department must serve notice as soon as possible and document each reason for delay.
(4) When the Department has charged a person with an infraction and has not placed them in pre-hearing temporary restrictive housing, the Department must serve the person charged and their legal representative or advocate, if any, written notice of the infraction, the reason for the proposed placement in restrictive housing, and any supporting evidence as soon as practicable, and no later than forty-eight (48) hours prior to the hearing. Failure to do so shall constitute a due process violation warranting dismissal of the matter that led to the hearing.
(5) Any member of DOC staff may serve the person charged with the notice of infraction, except those who participated in the incident. The person will be asked to sign the notice as proof of receipt and to verbally indicate whether they would like to have a legal representative or advocate at their hearing. If the person does not sign the notice, a staff member other than the person serving the notice must note the person’s refusal on the notice. Staff members who serve the notice, including staff members who note a person’s refusal to sign the notice, shall indicate their name and shield number legibly on the notice.
(6) All refusals to sign a notice of infraction and waivers of legal representation shall be videotaped with audio. In such cases where the Department maintains that someone has refused to sign, the Department must produce the videotaped refusal and make it part of the hearing record. Failure to do so shall constitute a due process violation warranting dismissal.
(7) The Department must send the notice of infraction to the charged person’s defense counsel of record and the designated contact for each law office providing such defense.
(8) In the event that the person charged with an infraction is unable to secure legal representation for the hearing through their counsel of record, the Department shall provide the contact information for one or more law offices providing criminal or civil defense services for people who are financially unable to obtain counsel. The Department shall regularly update the list of such contact information.
(d) Disciplinary Hearing.
(1) Hearing Adjudicators. Infraction hearings shall be conducted by DOC staff of the rank of Captain or above. Hearing adjudicators shall not be DOC staff who initially recommended the person for adjudication or otherwise provided evidence to support the person in custody's infraction charge.
(2) Time of Hearing. Within three (3) business days of service of the notice of infraction on the person charged, the Department shall commence an adjudication hearing. The only exceptions to the Department's obligation to commence a hearing within three (3) days shall be if the person is absent from the facility for a conflicting court appearance; hospitalization; significant family event; emergency situation; medical appointment; or attorney visit. In such cases, the Department shall commence a hearing immediately after the person returns to the facility.
(3) Due Process Violations. Prior to calling the person charged to the hearing, the Hearing Adjudicator shall review the notice of infraction to determine whether there are any due process violations that may require dismissal of the infraction.
(4) Recording. All disciplinary hearings must be audibly recorded.
(5) Refusal to Attend or Participate. The refusal of people in custody to attend or participate in their hearing or waiver of legal representation or advocacy must be videotaped with audio and made a part of the hearing record.
(6) Rights of the Person Charged. The Hearing Adjudicator shall advise the person charged of the following rights at the hearing, which must also be set forth in the notice of infraction:
(i) The right to legal representation. People charged with any infraction that could result in a placement in restrictive housing have the right to legal representation at their disciplinary hearing. If a person eligible for legal representation appears at a hearing unrepresented, the Department shall inform the person that they have the right to adjourn the hearing so they can engage a legal representative.
(ii) The right to appear: The person charged has the right to appear personally unless the right is waived in writing or the person refused to attend the hearing.
(A) If the person charged is excluded or removed from a restrictive housing hearing because it is determined that such person’s presence will jeopardize the safety of themselves or others or security of the facility, the basis for such exclusion must be documented in the hearing record.
(B) The Department shall grant reasonable requests for adjournments, including where such request facilitates the person appearing with their legal representative or advocate. The Department must establish that a person who does not appear knowingly and voluntarily waived their right to appear. Failure to establish such voluntary waiver may lead to the dismissal of the charges.
(C) A virtual hearing option shall be made available upon request of the legal representative or advocate of the person charged. In both the in-person and virtual options, the legal representative or advocate shall be provided the ability to privately confer with their client both before and during the hearing.
(iii) The right to make statements or remain silent. The person charged has the right to make statements. In cases where the infraction in question could lead to a subsequent criminal prosecution, the Hearing Adjudicator must inform the person that while the proceeding is not a criminal one, the person’s statements may be used against the person in a subsequent criminal proceeding. The Adjudicator must also inform the person of the right to remain silent and that silence will not be used against the person at the hearing.
(iv) The right to present evidence and call witnesses. The person charged has the right to present evidence, call witnesses, and cross-examine witnesses.
(A) Witnesses shall testify in person at the hearing unless the witnesses’ presence would jeopardize the safety of themselves or others or security of the facility. If a witness is excluded from testifying in person, the basis for the exclusion shall be documented in the hearing record.
(B) If a witness refuses to provide testimony at the hearing, the department must provide the basis for the witness’s refusal, videotape such refusal, or obtain a signed refusal form, to be included as part of the hearing record.
(v) The right to review the Department’s evidence.
(A) The person charged and their legal representative or advocate have the right to review the evidence supporting the proposed placement in restrictive housing prior to the infraction hearing. The Department shall provide such evidence as soon as practicable but no later than forty-eight (48) hours prior to the hearing.
(B) Such evidence or information may, as applicable, include but is not limited to:
(a) surveillance footage video or stills;
(b) body-worn camera footage;
(c) notices of infraction;
(d) facility and staff reports;
(e) use of force reports;
(f) injury reports;
(g) medical documentation (subject to local, state, and federal medical information privacy laws);
(h) witness list;
(i) all statements (written, recorded or summarized) in any writing or recording made by persons who have evidence or information relevant to the allegations; and
(j) any evidence of alleged refusals, including body-worn camera footage and any evidence that the charged individual knowingly and voluntarily waived their right to appear or right to access legal representation.
(C) Specific documented intelligence may be redacted in limited instances where the Department determines that disclosing such information would present a serious safety risk to specific individuals. In such cases, the Department shall inform the person in writing that the information is being redacted due to a specific security risk. The Department shall maintain records of both redacted and unredacted evidence.
(D) Where the Department fails to comply with paragraph (v) of subdivision (6) of this section or an order imposed or issued pursuant to this rule, the Hearing Adjudicator may make a further order for discovery, grant a continuance, order that a witness be called or recalled, draw an adverse inference regarding the non-compliance, preclude or strike a witness’s testimony or a portion of a witness’s testimony, admit or exclude evidence, order the dismissal of all or some of the charges, or make such other order as it deems appropriate under the circumstances.
(E) For purposes of placement in pre-hearing temporary restrictive housing, any adjournment sought by the person charged or their legal representative or advocate due to the Department’s failure to provide evidence as required by paragraph (v) of subdivision (6) of this section will not extend a person’s placement in pre-hearing temporary restrictive housing beyond five (5) business days pursuant to 40 RCNY § 6-04(d).
(F) Should the Department provide any evidence to the person for the first time at the hearing, the Department shall inform the person or their legal representative or advocate at the hearing that they have the right to adjourn the hearing so they can review and prepare their defense.
(G) Where evidence is lost or destroyed, or unavailable due to the failure or inability of the Department to preserve such evidence, the Hearing Adjudicator shall impose a remedy that is appropriate and proportionate to the prejudice suffered by the person charged with the infraction. If relevant body-worn camera footage is lost or destroyed, or correctional staff fails to turn on body-worn camera when required by DOC policy, the Hearing Adjudicator may dismiss the charges.
(vi) The right to an interpreter. The Department shall ensure that every person charged is aware they are entitled to an interpreter in their native language if they do not understand or are not able to communicate in English well enough to conduct the hearing in English. The Department shall take reasonable steps to provide an interpreter. If after taking reasonable steps the Department cannot provide an interpreter, the Hearing Adjudicator shall review all Department efforts to determine if the charges shall be dismissed due to failure to guarantee the right to an interpreter.
(vii) The right to an appeal. A person who is found guilty at a disciplinary hearing has the right to appeal an adverse decision as provided in 40 RCNY § 6-23(h).
(7) Burden of Proof. The Department has the burden of proof in all disciplinary proceedings. A person’s guilt must be shown by a preponderance of the evidence to justify restrictive housing placement.
(8) Hearing Time Frame.
(i) Once the hearing has begun, the Hearing Adjudicator shall make reasonable efforts to conclude the hearing in one session.
(ii) Adjournments may be granted if requested by the person charged or their legal representative or advocate. The Department shall provide the person charged and their legal representative or advocate adequate time to prepare for such hearings and shall grant reasonable requests for adjournments. In determining what constitutes a reasonable request for adjournment, factors that must be considered include but are not limited to:
(A) Additional time to locate witnesses;
(B) Additional time to obtain the assistance of an interpreter;
(C) Additional time to prepare a defense;
(D) A reasonable time for both the legal representative or advocate and client to be notified;
(E) A reasonable time for the legal representative or advocate to review discovery;
(F) A reasonable time for the legal representative or advocate to confer with their client; or
(G) Any other basis justifying the need for an adjournment.
(iii) Hearing Adjudicators may also adjourn a hearing to question additional witnesses not available at the time of the hearing, gather further information, refer the person charged to mental health staff, or if issues are raised that require further investigation or clarification to reach a decision.
(iv) Notwithstanding any adjournments, hearings must be completed within five (5) days, absent extenuating circumstances or unless the person charged waives this time frame in writing or on the record.
(9) Legal Representation. People charged with any infraction that could result in a sentence to restrictive housing shall be permitted to have a legal representative or advocate represent them at their disciplinary hearing and in any related appeal. People entitled to such representation shall be permitted to choose their legal representative or advocate.
(e) Determination.
(1) The Hearing Adjudicator shall reach a determination within five (5) business days of the conclusion of the hearing. The person charged and their legal representative or advocate shall be served with a copy of the determination within twenty-four (24) hours of the determination.
(2) The determination shall be in writing, legible, and contain the following:
(i) A finding of “guilty,” “not guilty,” or “dismissed” on each charge in the infraction;
(ii) A detailed description of the evidence relied upon by the Hearing Adjudicator in reaching such finding;
(iii) The sanction imposed, if any; and
(iv) A summary of each witness’s testimony, including whether the testimony was credited or rejected, with a statement of the reasons therefor. If the witness’s testimony contains specific documented intelligence, that intelligence may be redacted on the copy of the determination provided to the person in custody and their representative if the Department determines that disclosing such information would present a serious safety risk to specific individuals. In such cases, the Department shall inform the person and their legal representative in writing that the information is being redacted due to a specific security risk. The Department shall maintain records of both redacted and unredacted determinations.
(3) Records generated pursuant to a disciplinary hearing in which a person is found not guilty of the charges, after either the disciplinary hearing or appeal, shall be kept confidential and shall not be considered in making decisions pertaining to the person’s access to programs, services, or in the granting of or withholding of “good time” credit for sentenced people, as defined in 39 RCNY § 1-03.
(f) Hearing adjudicators shall impose sanctions that are fair and proportionate to the infraction of which a person was found guilty. Failure to comply with the requirements described in subdivisions (a) through (e) of this section shall constitute a due process violation warranting dismissal of the matter that led to the hearing.
(g) People in custody must be placed in restrictive housing within thirty (30) days of adjudication of guilt. If the Department does not place a person into restrictive housing within this thirty (30) day period, the Department may not place the person in restrictive housing for that infraction at a later time.
(h) Appeals.
(1) A person who is found guilty at a disciplinary hearing has the right to appeal such determinations. The appeal shall be in writing, shall be based on facts already in the record, and shall clearly set forth the basis for the appeal, except the person may raise any newly discovered evidence in the appeal.
(2) People in custody shall have three (3) business days from receipt of a guilty determination to file an appeal, and the Department shall render a decision within two (2) business days of receipt of the appeal.
(3) People charged with infractions that could result in placement in restrictive housing are entitled to a legal representative or an advocate for purposes of filing an appeal.
(4) A person may appeal based on the belief that there was a due process violation, insufficient evidence to support a guilty finding, or because the Hearing Adjudicator was not impartial.
(5) The decision on appeal shall be in writing, legible, and state the reasons for granting or denying the appeal. People who are unable to read or understand the decision shall be provided with necessary assistance.
(6) Appeals shall be determined by Department staff of the rank of Captain or above. The appeal must not be determined by:
(i) Staff who reported, witnessed, or investigated the incident underlying a guilty determination;
(ii) Staff who recommended the person's initial placement in restrictive housing;
(iii) Staff who recommended that individual restrictions be imposed on the person;
(iv) Staff who presided as the Hearing Adjudicator at the person's disciplinary hearing.
(i) Disciplinary Due Process Reporting.
(1) Within one year of the Effective Date, the Department shall develop the system(s) necessary to collect accurate, uniform data on the due process requirements of 40 RCNY § 6-23, and to centrally store related documentation, in a manner that may be analyzed electronically by the Board.
(2) The Department shall provide the Board with a public semiannual report on Disciplinary Due Process for the Adult and Young Adult population, including but not limited to information disaggregated by month on:
(i) Notices of Infraction, including the number and percent of Infraction notices, by Grade of top infraction charge (e.g., Grade I violent, Grade I non-violent, Grade II, Grade III), by whether the person charged signed or refused to sign the Infraction Notice and whether refusal was recorded; and by whether the person charged requested assistance in reading or understanding the person's infraction notice and whether the person was provided such assistance.
(ii) Hearings and hearing determinations, including the number and percent of infractions served, by top infraction charge (i.e., Grade I violent, Grade I non-violent, Grade II, Grade III) by whether a hearing occurred, whether a person had a legal representative at the hearing, and by hearing outcome (Guilty, Not Guilty, Dismissed, e.g. due process violation).
(iii) Rights of people charged, including the number and percent of hearings by top infraction charge Grade (i.e., Grade I violent, Grade I non-violent, Grade II, Grade III), by whether the person charged refused to attend their hearing and whether the refusal is documented on video; and by whether the person charged requested a legal representative and/or interpreter and whether such request was granted.
(iv) Disciplinary sanctions, including the number and percent of guilty determinations by top infraction charge Grade (i.e., Grade I violent, Grade I non-violent, Grade II, Grade III), by whether the individual was placed in restrictive housing, and by the reasons not placed (e.g., discharged from custody, excluded due to health contraindication, or placement did not occur within 30 days of adjudication).
(v) Appeals, including the number and percent of guilty determinations appealed by top infraction charge Grade (i.e., Grade I violent, Grade I non-violent, Grade II, Grade III), by whether the person had a legal representative for their appeal, and by outcome of appeal (e.g., determination upheld, determination reversed, remanded to redraw charges to address due process violation, dismissed due to discharge from custody).
(vi) Any other information the Department or the Board deems relevant to assessment of restrictive housing Due Process.
(3) The Department shall provide the Board with the individually identified data used to create the public reports required in this section and all due process documentation.
(4) The Board and the Department shall jointly develop the reporting templates for the public reports required by 40 RCNY § 6-23(i)(2), which shall be subject to the Board's approval.
(Added City Record 6/9/2021, eff. 7/9/2021; amended City Record 6/28/2024, eff. 7/28/2024)
