S T A T E O F N E W Y O R K
________________________________________________________________________
309--B
Cal. No. 581
2023-2024 Regular Sessions
I N S E N A T E
(PREFILED)
January 4, 2023
___________
Introduced by Sen. SALAZAR -- read twice and ordered printed, and when
printed to be committed to the Committee on Crime Victims, Crime and
Correction -- recommitted to the Committee on Crime Victims, Crime and
Correction in accordance with Senate Rule 6, sec. 8 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first report, amended on first report, ordered to a second report
and ordered reprinted, retaining its place in the order of second
report
AN ACT to amend the correction law, in relation to the establishment of
emergency management release plans to be developed for use in correc-
tional facilities in the event of a state disaster emergency declared
pursuant to executive order
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The correction law is amended by adding a new section 135
to read as follows:
§ 135. STATE DISASTER EMERGENCY MANAGEMENT RELEASE PLANS IN CORREC-
TIONAL FACILITIES. 1. THERE SHALL BE ESTABLISHED WITHIN THE DEPARTMENT
AN ADVISORY BOARD TO PROVIDE RECOMMENDATIONS TO THE DEPARTMENT REGARDING
THE DEVELOPMENT OF EMERGENCY MANAGEMENT RELEASE PLANS WITHIN THE FACILI-
TIES OPERATED BY THE DEPARTMENT FOR USE IN THE EVENT OF A STATE DISASTER
EMERGENCY DECLARED PURSUANT TO EXECUTIVE ORDER.
2. THE ADVISORY BOARD SHALL CONSIST OF NINE MEMBERS INCLUDING:
(A) THE COMMISSIONER OF THE DEPARTMENT, OR THEIR DESIGNEE;
(B) THE COMMISSIONER OF THE DEPARTMENT OF HEALTH, OR THEIR DESIGNEE;
(C) THE DIRECTOR OF HOMELAND SECURITY AND EMERGENCY SERVICES;
(D) TWO INDIVIDUALS WHO WERE FORMERLY INCARCERATED IN FACILITIES OPER-
ATED BY THE DEPARTMENT, ONE EACH APPOINTED BY THE TEMPORARY PRESIDENT OF
THE SENATE AND THE SPEAKER OF THE ASSEMBLY, BASED ON CONSULTATIONS WITH
ADVOCACY ORGANIZATIONS WORKING DIRECTLY WITH COMMUNITIES IMPACTED BY THE
CRIMINAL JUSTICE SYSTEM;
(E) THREE MEMBERS APPOINTED BY THE GOVERNOR INCLUDING:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00663-03-4
S. 309--B 2
(I) A MEMBER OF THE NEW YORK STATE CORRECTIONAL OFFICERS' BENEVOLENT
ASSOCIATION;
(II) AN INDIVIDUAL WITH A DEMONSTRATED BACKGROUND IN EMERGENCY PLAN-
NING WHO HAS CREATED AN EMERGENCY MANAGEMENT ACCREDITATION PROGRAM FOR
ACCREDITATION PURPOSES IN THE PAST;
(III) AN INDIVIDUAL WITH A BACKGROUND IN CORRECTIONAL HEALTH, CAPABLE
OF ASCERTAINING PARTICULAR VULNERABILITIES TO ANY EMERGING DISEASES OR
INFECTIONS, OR ANY OTHER PUBLIC HEALTH RISKS THAT COULD FACE THE INCAR-
CERATED POPULATION; AND
(F) AN ATTORNEY WITH EXPERIENCE DEFENDING THE CONSTITUTIONAL RIGHTS OF
INCARCERATED INDIVIDUALS, APPOINTED BY THE ATTORNEY GENERAL.
3. VACANCIES ON THE ADVISORY BOARD SHALL BE FILLED IN THE SAME MANNER
AS THE ORIGINAL APPOINTMENT.
4. THE MEMBERS OF THE ADVISORY BOARD SHALL ELECT A CHAIR OF THE BOARD
FROM AMONG THEIR NUMBER. A MAJORITY OF THE MEMBERS OF THE ADVISORY BOARD
SHALL CONSTITUTE A QUORUM FOR THE PURPOSES OF THE BUSINESS OF THE ADVI-
SORY BOARD.
5. THE ADVISORY BOARD SHALL:
(A) VISIT EACH FACILITY OPERATED BY THE DEPARTMENT AT LEAST ONE TIME
EVERY THREE YEARS;
(B) EVALUATE AND MAKE GENERAL RECOMMENDATIONS FOR THE CORRECTIONAL
FACILITY SYSTEM AND FACILITY-SPECIFIC RECOMMENDATIONS FOR EACH FACILITY
OPERATED BY THE DEPARTMENT AS TO:
(I) A SELECTION PROCESS FOR INCARCERATED INDIVIDUALS ELIGIBLE FOR
EMERGENCY RELEASE DURING A STATE DISASTER EMERGENCY DECLARED PURSUANT TO
EXECUTIVE ORDER. SUCH SELECTION PROCESS SHALL INCLUDE, BUT NOT BE LIMIT-
ED TO, CONSIDERATION OF INCARCERATED INDIVIDUALS WHO MEET THE CRITERIA
INCLUDED UNDER SUBDIVISION ELEVEN OF THIS SECTION;
(II) A PROCESS FOR EVACUATION OF INCARCERATED INDIVIDUALS WHO DO NOT
QUALIFY FOR EMERGENCY RELEASE DURING A STATE DISASTER EMERGENCY DECLARED
PURSUANT TO EXECUTIVE ORDER IF SUCH NEED ARISES;
(III) CHANGES TO FACILITY OPERATIONS TO ENSURE THE SAFETY AND WELL-BE-
ING OF INCARCERATED INDIVIDUALS WHO REMAIN INCARCERATED DURING A STATE
DISASTER EMERGENCY DECLARED PURSUANT TO EXECUTIVE ORDER; AND
(IV) ALTERNATIVE METHODS THAT CAN BE DEPLOYED IN ORDER TO MEET THE
NEEDS OF INCARCERATED INDIVIDUALS WHO REMAIN INCARCERATED DURING THE
STATE DISASTER EMERGENCY, INCLUDING ALTERNATIVES TO HELP FACILITATE
VISITS BY COUNSEL AND FAMILY VISITATION; AND
(C) HAVE AUTHORITY BASED ON A DECLARED EMERGENCY TO EVALUATE REPORTS
AND DRAFT COUNTER REPORTS WITH ALTERNATIVE RECOMMENDED COURSES OF
ACTION.
6. EACH STATE AGENCY AND DEPARTMENT SHALL PROVIDE ASSISTANCE TO THE
ADVISORY BOARD AS REQUESTED FOR THE PURPOSE OF FULFILLING THE OBLI-
GATIONS OF THE ADVISORY BOARD UNDER THIS SECTION. THE ADVISORY BOARD
SHALL HAVE ACCESS TO ALL THE RELEVANT DATA NECESSARY TO MAKE RECOMMENDA-
TIONS AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, INCLUDING, BUT
NOT LIMITED TO, FOR EACH FACILITY OPERATED BY THE DEPARTMENT IN THE
STATE:
(A) THE NUMBER OF INCARCERATED INDIVIDUALS IN THE FACILITY;
(B) INFORMATION AS TO THE VULNERABILITY AND RESILIENCY OF EACH FACILI-
TY;
(C) THE STAFF TO INCARCERATED INDIVIDUAL RATIO;
(D) THE NUMBER OF VACANT SPOTS AT THE FACILITY; AND
(E) THE NUMBER AND IDENTITY OF INCARCERATED INDIVIDUALS RELEASED
PURSUANT TO THIS PLAN AND THE FACTORS UTILIZED TO DETERMINE SUCH RELEASE
PURSUANT TO SUBDIVISION ELEVEN OF THIS SECTION AND A DETAILED REPORT ON
S. 309--B 3
INCARCERATED INDIVIDUALS THAT FIT INTO A CATEGORY BUT WERE DETERMINED
INELIGIBLE FOR RELEASE PURSUANT TO THIS SECTION AND THE FACTORS UTILIZED
FOR SUCH DETERMINATION.
7. THE MEMBERS OF THE ADVISORY BOARD SHALL SERVE WITHOUT COMPENSATION
BUT SHALL BE REIMBURSED FOR THEIR NECESSARY AND ACTUAL EXPENSES IN THE
PERFORMANCE OF THEIR DUTIES UNDER THIS SECTION.
8. MEETINGS OF THE ADVISORY BOARD SHALL BE CALLED BY THE CHAIRPERSON
OF THE ADVISORY BOARD.
9. THE ADVISORY BOARD SHALL ISSUE ITS FIRST GENERAL RECOMMENDATIONS TO
THE DEPARTMENT WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS SECTION
AND SHALL ISSUE RECOMMENDATIONS FOR EACH FACILITY OPERATED BY THE
DEPARTMENT NO LATER THAN SIX MONTHS AFTER THE ADVISORY BOARD CONDUCTS A
VISIT TO SUCH FACILITY AND SHALL UPDATE ITS GENERAL RECOMMENDATIONS AND
FACILITY SPECIFIC RECOMMENDATIONS ON AT LEAST AN ANNUAL BASIS.
10. (A) WITHIN ONE YEAR OF RECEIPT OF THE RECOMMENDATIONS OF THE ADVI-
SORY BOARD, THE DEPARTMENT SHALL DEVELOP AND IMPLEMENT SUSTAINABLE
FACILITY-BASED EMERGENCY MANAGEMENT PLANS FOR THE RELEASE OF INCARCERAT-
ED INDIVIDUALS FOR USE IN THE EVENT OF A STATE DISASTER EMERGENCY
DECLARED PURSUANT TO EXECUTIVE ORDER BASED UPON THE ADVISORY BOARD'S
RECOMMENDATIONS. THE DEPARTMENT SHALL REVIEW AND UPDATE EACH SUCH PLAN
ON AT LEAST AN ANNUAL BASIS. UPDATES TO THE PLANS SHALL INCLUDE MEASURES
TAKEN BASED UPON UPDATED RECOMMENDATIONS BY THE ADVISORY BOARD.
(B) EMERGENCY PLANS DEVELOPED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
VISION SHALL INCLUDE, BUT NOT BE LIMITED TO, PROVISIONS DESCRIBING THE
PROCEDURES THAT WILL BE IMPLEMENTED TO FACILITATE THE RECOMMENDATIONS
MADE BY THE ADVISORY BOARD AS DESCRIBED IN PARAGRAPH (B) OF SUBDIVISION
FIVE OF THIS SECTION, INCLUDING A LIST OF INCARCERATED INDIVIDUALS TO BE
CONSIDERED FOR EMERGENCY RELEASE BASED ON THE CRITERIA ESTABLISHED IN
SUBDIVISION ELEVEN OF THIS SECTION FOR DETERMINING ELIGIBILITY FOR EMER-
GENCY RELEASE. AFTER SUCH LIST OF INCARCERATED INDIVIDUALS TO BE CONSID-
ERED FOR EMERGENCY RELEASE IS COMPILED FOR EACH FACILITY OPERATED BY THE
DEPARTMENT, INDIVIDUALIZED DECISIONS SHALL BE MADE BY THE DEPARTMENT AS
TO THE ELIGIBILITY FOR RELEASE OF EACH INCARCERATED INDIVIDUAL, WITH
CLEARLY STATED REASONS IN CASE OF DENIAL.
(I) AN INCARCERATED INDIVIDUAL MAY BE DEEMED INELIGIBLE FOR CONSIDER-
ATION FOR EMERGENCY RELEASE IF THEY HAVE BEEN FOUND GUILTY BY THE
DEPARTMENT OF A VIOLENT INSTITUTIONAL INFRACTION WITHIN THE ONE HUNDRED
EIGHTY DAYS PRIOR TO RELEASE CONSIDERATION.
(II) THE TERMINATION OF THE STATE DISASTER EMERGENCY DECLARED PURSUANT
TO EXECUTIVE ORDER SHALL NOT BE A BASIS FOR AN INCARCERATED INDIVIDUAL
RELEASED PURSUANT TO THE PROVISIONS OF THIS SECTION TO BE REMANDED BACK
INTO CUSTODY.
11. THE FOLLOWING CRITERIA SHALL BE CONSIDERED TO DETERMINE ELIGIBIL-
ITY FOR EMERGENCY RELEASE OF AN INCARCERATED INDIVIDUAL PURSUANT TO THIS
SECTION; PROVIDED, HOWEVER, THAT SUCH CRITERIA REPRESENT A NON-EXHAUS-
TIVE LIST OF FACTORS TO BE CONSIDERED IN DETERMINING SUCH ELIGIBILITY.
SUCH CRITERIA SHALL INCLUDE CONSIDERATION OF ANY INCARCERATED INDIVIDUAL
WHO:
(A) IS TERMINALLY ILL, MENTALLY ILL, OR DISABLED, AS DETERMINED BY A
MEDICAL PROFESSIONAL;
(B) IS MEDICALLY VULNERABLE;
(C) HAS AN ADDITIONAL DOCUMENTED ILLNESS OR ILLNESSES DETERMINED BY AN
INDEPENDENT HEALTH PRACTITIONER NOT AFFILIATED WITH THE FACILITY WHO
DETERMINES THAT SUCH ILLNESS OR ILLNESSES PLACE THE INDIVIDUAL AT RISK;
(D) IS UNLIKELY TO POSE A SUBSTANTIAL RISK OF CAUSING BODILY INJURY OR
USING VIOLENT FORCE AGAINST ANOTHER INDIVIDUAL;
S. 309--B 4
(E) IS OVER FIFTY-FIVE YEARS OLD;
(F) IS A PRIMARY CAREGIVER;
(G) IS PREGNANT;
(H) HAS COMPLETED MORE THAN FIFTY PERCENT OF THEIR MINIMUM SENTENCE IF
SERVING AN INDETERMINATE SENTENCE OR FIFTY PERCENT OF THEIR SENTENCE IF
SERVING A DETERMINATE SENTENCE; OR
(I) WILL COMPLETE THEIR SENTENCE WITHIN EIGHTEEN MONTHS OF THE EFFEC-
TIVE DATE OF THIS SECTION.
12. THE DEPARTMENT SHALL HAVE THE AUTHORITY TO IMPLEMENT FACILITY-
BASED EMERGENCY MANAGEMENT RELEASE PLANS UPON THE OCCURRENCE OF A STATE
DISASTER EMERGENCY PURSUANT TO EXECUTIVE ORDER.
13. WITHIN FORTY-EIGHT HOURS OF A STATE DISASTER EMERGENCY DECLARED
PURSUANT TO EXECUTIVE ORDER, THE DEPARTMENT SHALL PROVIDE TO THE GOVER-
NOR, THE ADVISORY BOARD AND THE STATE LEGISLATURE THE EMERGENCY MANAGE-
MENT PLAN FOR RELEASE IN EACH FACILITY OPERATED BY THE DEPARTMENT. THE
DEPARTMENT SHALL PROVIDE THE GOVERNOR, THE ADVISORY BOARD AND THE STATE
LEGISLATURE:
(A) A CERTIFICATION THAT EACH FACILITY HAS RELEASED THE PERSONS DETER-
MINED ELIGIBLE FOR EMERGENCY RELEASE PURSUANT TO THIS SECTION;
(B) THE IDENTITY OF EACH INCARCERATED INDIVIDUAL RELEASED PURSUANT TO
THE EMERGENCY MANAGEMENT RELEASE PLAN FOR EACH FACILITY OPERATED BY THE
DEPARTMENT AND THE FACTORS UTILIZED FOR SUCH ELIGIBILITY DETERMINATIONS,
WITHOUT DISCLOSING ANY INFORMATION THAT WOULD CONSTITUTE AN INVASION OF
THE PRIVACY OF ANY INDIVIDUAL OR WHICH WOULD DISCLOSE PROTECTED HEALTH
INFORMATION; AND
(C) AN ESTIMATE OF THE FISCAL SAVINGS TO THE STATE DUE TO THE RELEASE
OF INCARCERATED INDIVIDUALS PURSUANT TO THIS SECTION.
14. DEFINITIONS. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANING:
(A) THE TERM "MEDICALLY VULNERABLE" INCLUDES, BUT IS NOT LIMITED TO,
AN INDIVIDUAL WHO IS:
(I) DIAGNOSED WITH A CHRONIC LUNG DISEASE;
(II) DIAGNOSED WITH MODERATE OR SEVERE ASTHMA;
(III) DIAGNOSED WITH A SERIOUS HEART CONDITION;
(IV) DIAGNOSED WITH DIABETES;
(V) DIAGNOSED WITH A CHRONIC KIDNEY DISEASE AND UNDERGOING DIALYSIS;
(VI) DIAGNOSED WITH LIVER DISEASE;
(VII) DIAGNOSED WITH CANCER;
(VIII) DIAGNOSED WITH OBESITY; OR
(IX) IMMUNOCOMPROMISED.
(B) THE TERM "PRIMARY CAREGIVER" MEANS AN INDIVIDUAL WHO HAS THE
RESPONSIBILITY FOR THE CARE OF ANOTHER INDIVIDUAL, EITHER VOLUNTARILY,
BY CONTRACT, BY RECEIPT OF PAYMENT FOR CARE, OR AS A RESULT OF THE OPER-
ATION OF LAW AND INCLUDES A FAMILY MEMBER OR OTHER INDIVIDUAL WHO
PROVIDES COMPENSATED OR UNCOMPENSATED CARE TO ANOTHER INDIVIDUAL, ON
BEHALF OF SUCH INDIVIDUAL OR ON BEHALF OF A PUBLIC OR PRIVATE AGENCY,
ORGANIZATION, OR INSTITUTION.
§ 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law. Effective immediately, the addition, amend-
ment and/or repeal of any rule or regulation necessary for the implemen-
tation of this act on its effective date are authorized to be made and
completed on or before such date.
