§ 6-23 Due Process and Procedural Justice.
RCNY § 6-23
(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.
(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.
(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.
(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).
(i)Once the hearing has begun, the Hearing Adjudicator shall make reasonable efforts to conclude the hearing in one session.
(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.
(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.
