A3979 ACS

An Act concerning incarcerated primary caretaker parents, amending P.L.2005, c.155, and supplementing Title 30 and Title 52 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) This act shall be known and may be cited as the “Dignity for Incarcerated Primary Caretaker Parents Act.”

2. (New section) The Legislature finds and declares:

a. A growing segment of the prison population typically is excluded from the criminal justice reform conversation and does not get the attention it deserves: primary caretaker parents behind bars. According to the Sentencing Project, in 2004, 52 percent of inmates in state prisons and 63 percent in federal prisons were parents of minor children. Most parents in prison are fathers, but the rate of female incarceration in America is growing at an alarming rate. While the number of fathers in prison increased 76 percent between 1991 and 2007, the number of mothers in prison increased by 122 percent during that period.

b. Presumably, the considerable growth in incarcerated parents represents a considerable growth in incarcerated primary caretaker parents. This is significant because these parents face unique challenges. Their incarceration is not their burden to alone share; it also greatly impacts their family. Many incarcerated primary caretaker parents also are faced with difficult and competing choices, like whether to use their limited funds to communicate with their children or in the case of female inmates, to purchase hygiene products in the commissary.

c. Therefore, it is necessary to create a strengthened Corrections Ombudsperson in the Office of the Corrections Ombudsperson to enforce the rights of inmates, provide access to the benefits to which they are entitled, and ensure accountability, transparency, monitoring, and continued improvements within all correctional facilities.

d. It is time for this State to focus on its incarcerated primary caretaker parents and provide them with the protections they deserve.

3. (New section) As used in this act:

“Department” means the Department of Corrections.

“Isolated confinement” means the confinement of an inmate in a correctional facility, pursuant to disciplinary, administrative, protective, investigative, medical, or other classification, in a cell or similarly confined holding or living space, alone or with other inmates, for approximately 23 hours or more per day, with severely restricted activity, movement, and social interaction, and shall include, but not be limited to, administrative segregation, disciplinary segregation, solitary confinement, and protective segregation.

“Office” means the Office of the Corrections Ombudsman.

“Primary caretaker parent” means any inmate who has a child under the age of 18, who prior to the inmate’s incarceration, spent the majority of days in the care of the inmate parent, and whose access to that child has not been terminated by court order, the inmate’s own request, or other circumstance.

“Restraint” mean any physical restraint or mechanical device used to control the movement of a inmate’s or detainee’s body and limbs, including, but not limited to, shackles, flex cuffs, soft restraints, hard metal handcuffs, a black box, Chubb cuffs, leg irons, belly chains, a security or tether chain, or a convex shield.

4. (New section) The Commissioner of Corrections shall:

a. place an inmate who has a minor child in a State correctional facility as close as possible to that child’s place of residence at the request of the inmate and prior to sentencing;

b. establish policies that encourage and promote visitation, particularly for inmates who are primary caretaker parents, including, but not limited to:

(1) requiring the visitation program be in operation at least six days per week, including Saturday and Sunday, for at least four hours per visit;

(2) prohibiting restrictions on the number of minor children allowed to visit an inmate;

(3) authorizing up to three adult visitors; and

(4) authorizing contact visits;

c. prohibit the isolated confinement of a pregnant woman;

d. prohibit a staff member of, or medical service provider for, a correctional facility from restraining a woman known to be pregnant or applying restraints during any stage of labor, any pregnancy related medical distress, delivery, or postpartum;

e. provide parenting classes to primary caretaker parents;

f. provide appropriate trauma informed care to inmates who are primary caretaker parents and train correctional police officers on how to interact with inmates who are victims of trauma;

g. allow former inmates who have returned to society, after appropriate internal clearance, to mentor current inmates who are incarcerated primary caretaker parents and assist these inmates with reentry efforts;

h. require standard feminine hygiene products, including but not limited to, tampons and sanitary pads, be provided at the request of and free of charge to female inmates, and petroleum jelly, aspirin, ibuprofen, and any other item deemed appropriate by the commissioner, to be made available to inmates from the commissary or medical department;

i. restrict correctional police officers and other department employees from entering the restrooms and shower facilities of inmates of the opposite sex when occupied except when deemed necessary by the commissioner; and

j. allow all pregnant women and inmates who are primary caretaker parents to enroll in residential drug abuse and mental health programs provided they meet the requirements of those programs.

5. (New section) The chief executive officer or warden of each county correctional facility shall:

a. establish policies that encourage and promote visitation, particularly for inmates who are primary caretaker parents, including, but not limited to:

(1) requiring in-person visitation three days per week, including Saturday and Sunday, for at least 30 minutes per visit;

(2) prohibiting restrictions on the number of children allowed to visit an inmate consistent with current regulations;

(3) authorizing up to two adult visitors; and

(4) providing consistent access to contact visits;

(5) authorizing contact visits with children;

b. prohibit the isolated confinement of a pregnant woman;

c. prohibit a staff member of, or medical service provider for, a county correctional facility from restraining a woman known to be pregnant or applying restraints during any stage of labor, any pregnancy related medical distress, delivery, or postpartum;

d. provide parenting classes to inmates who are primary caretaker parents;

e. provide trauma informed care to inmates who are primary caretaker parents and train correctional police officers on how to interact with inmates who are victims of trauma;

f. allow former inmates who are participating members of a non-profit or reentry organization mentorship or visitation program approved by the chief executive officer or warden to mentor current inmates who are incarcerated primary caretaker parents and assist these inmates with reentry efforts;

g. require standard feminine hygiene products, including but not limited to tampons and sanitary pads, be provided at the request of and free of charge to female inmates, and petroleum jelly, aspirin, ibuprofen, and any other item deemed appropriate by the chief executive officer or warden, to be provided at the request of and free of charge to inmates;

h. restrict correctional police officers and other department employees from entering the restrooms and shower facilities of inmates of the opposite sex when occupied except when deemed necessary by the chief executive officer or warden; and

i. allow all pregnant women and inmates who are primary caretaker parents to enroll in residential drug abuse and mental health programs provided they meet the requirements of those programs.

6. Section 26 of P.L.2005 (C.52:27EE-26) is amended to read as follows:

26. Office of Corrections Ombudsperson; transfer of functions.

a. All functions, powers, and duties now vested in the Corrections Ombudsperson in the Department of the Public Advocate are hereby transferred to and assumed by the Office of the Corrections Ombudsperson in, but not of, the Department of the Treasury. [The Corrections Ombudsperson shall be appointed by the Governor.] For the purposes of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the Office of the Corrections Ombudsperson is hereby allocated to the Department of the Treasury, but, notwithstanding this allocation, the [ombudsperson] Office of the Ombudsperson shall be independent of any supervision or control by the [department] Department of Treasury or by any board or officer thereof.

b. Whenever, in any law, rule, regulation, order, reorganization plan, contract, document, judicial, or administrative proceeding, or otherwise, reference is made to the Corrections Ombudsperson in the Department of the Public Advocate the same shall mean and refer to the Office of the Corrections Ombudsperson in, but not of, the Department of the Treasury.

c. The office shall be responsible for:

(1) providing information to inmates and their families;

(2) promoting public awareness and understanding of the rights of inmates;

(3) identifying systemic issues and responses upon which the Governor and Legislature may act; and

(4) ensuring compliance with relevant statutes, rules, regulations, and policies concerning corrections facilities, services, and treatment of inmates under the jurisdiction of the department.

d. The Corrections Ombudsperson shall serve as the head of the Office of the Corrections Ombudsperson.

(1) The corrections ombudsperson shall be appointed by the Governor from qualified persons of recognized judgment, independence, objectivity, and integrity, who are qualified by training or experience in corrections law and policy.

(2) A person shall be disqualified from being appointed as ombudsperson if the person or the person’s spouse:

(a) is or has been employed by or participates in the management of a business entity or other organization receiving funds from the department within the last five years;

(b) owns or controls, directly or indirectly, any interest in a business entity or other organization receiving funds from the department within the last five years;

(d) is required to register as a lobbyist because of the person’s activities for compensation on behalf of a profession related to the operation of the department or the office.

e. The corrections ombudsperson shall hold the office for a term of five years and continue to hold the office until reappointed or the appointment of a successor. The Governor may remove the ombudsperson only for neglect of duty, misconduct, or the inability to perform duties. Any vacancy shall be filled by similar appointment for the remainder of the unexpired term.

f. The corrections ombudsperson shall report directly to the Governor.

g. The office shall be adequately funded and staffed with the requisite number of employees with expertise and training necessary to carry out the duties of the office.

h. The corrections ombudsperson may employ assistants to perform duties and exercise the same powers as the ombudsperson.

i. A person may not serve as an assistant corrections ombudsperson or employee of the office if the person or the person’s spouse:

(a) is or has been employed by or participates in the management of a business entity or other organization receiving funds from the Department within the last five years;

(b) owns or controls, directly or indirectly, any interest in a business entity or other organization receiving funds from the department within the last five years;

(d) is required to register as a lobbyist because of the person’s activities for compensation on behalf of a profession related to the operation of the department or the office.

j. The corrections ombudsperson may employ technical experts and other employees or consultants necessary to perform the duties of the office.

(cf: P.L.2010, c.34, s.24)

7. Section 28 of P.L.2005 (C.52:27EE-28) is amended to read as follows:

28. Corrections Ombudsperson; duties.

a. The Corrections Ombudsperson shall establish and implement procedures for eliciting, receiving, processing, responding, and resolving complaints from inmates, their families, other interested citizens, public officials, and government agencies concerning conditions in the correctional facilities noted in section 27 of [this act] of P.L.2005 (C. 52:27EE-27).

b. To implement the provisions of P.L. c. (pending before the Legislature as this bill), the ombudsperson shall:

(1) establish priorities for use of the resources available to the ombudsperson;

(2) maintain a Statewide toll-free telephone number, a collect telephone number, a website, and a mailing address for the receipt of complaints and inquiries;

(3) provide information, as appropriate, to inmates, family members and representatives of inmates, department employees, and others regarding the rights of inmates;

(4) provide technical assistance to support inmate participation in self-advocacy;

(5) monitor compliance with applicable federal, State, county, and municipal laws, rules, regulations, and policies related to the health, safety, welfare, and rehabilitation of inmates;

(6) monitor and participate in legislative and policy developments affecting correctional facilities;

(7) establish a Statewide uniform reporting system to collect and analyze data related to complaints received by the ombudsperson regarding the department;

(8) establish procedures to receive, investigate, and resolve complaints;

(9) establish procedures to gather stakeholder input into the ombudsperson’s activities and priorities, which shall include holding public meetings at least quarterly;

(10) by November 1st of each year, annually submit to the Governor’s office and the Legislature, and make publicly available, a report that is both aggregated and disaggregated by each facility and includes, at a minimum, the following information:

(a) the budget and expenditures of the ombudsperson;

(b) the number of complaints received and resolved by the ombudsperson;

(c) a description of significant systemic or individual investigations or outcomes achieved by the ombudsperson in the preceding year;

(d) any outstanding or unresolved concerns or recommendations of the ombudsperson; and

(e) input and comments from stakeholders regarding the ombudsperson’s activities during the preceding year.

(11) promote awareness among department employees, inmates, and family members and other members of the public regarding:

(a) how the Office of Corrections Ombudsperson may be contacted;

(b) the purpose of the office; and

(l2) provide assistance to an inmate or family member whom the ombudsperson determines is in need of assistance, including advocating with an agency, provider, or other person in the best interests of the inmate;

(13) make appropriate referrals under any of the powers and duties of the office, including to appropriate law enforcement authorities when criminal complaints by inmates are received by the office;

(14) attend any relevant training provided to correctional officers and participate in other appropriate professional training;

(15) notwithstanding any other provision of law to the contrary, review criminal investigations to ensure the investigations were accurate, unbiased, and thorough without investigating alleged criminal behavior; and

(16) adopt and comply with rules, policies, and procedures necessary to implement the provisions of P.L. c. (pending before the Legislature as this bill).

(cf: P.L.2005, c.155, s.28)

8. (New section) The corrections ombudsperson shall conduct investigations of inmate complaints in accordance with the provisions of this section.

a. The ombudsperson may initiate and attempt to resolve an investigation upon the ombudperson’s own initiative, or upon receipt of a complaint from an inmate, a family member, a representative of an inmate, a department employee, or any other person, including but not limited to any of the following that may adversely affect the health, safety, welfare, or rights of inmates:

(1) abuse or neglect;

(2) department decisions or administrative actions;

(3) inactions or omissions;

(4) policies, rules, or procedures; or

(5) alleged violations of law by the department that may adversely affect the health, safety, welfare, or rights of inmates.

b. If the ombudsperson does not investigate a complaint, the ombudsperson shall notify the complainant of the decision not to investigate and the reasons for the decision.

c. The ombudsperson shall not investigate any complaints relating to an inmate’s underlying criminal conviction.

d. The ombudsperson shall not investigate a complaint from a department employee that relates to the employee’s employment relationship with the department or the administration of the department, unless the complaint is related to the health, safety, welfare, and rehabilitation of inmates.

e. The ombudsperson shall attempt to resolve any complaint at the lowest possible level.

f. The ombudsperson may refer complainants and others to appropriate resources, agencies, or departments.

g. The ombudsperson shall not impose any fee for the submission or investigation of complaints.

h. The ombudsperson shall remain neutral and impartial and shall not act as an advocate for the complainant or for the department.

i. At the conclusion of an investigation of a complaint, the ombudsperson shall render a public decision on the merits of each complaint, except that the documents supporting the decision are subject to relevant confidentiality provisions. The ombudsperson shall communicate the decision to the inmate, if appropriate, and to the department. The ombudsperson shall state its recommendations and reasoning if, in the ombudsperson’s opinion, the department or any employee should:

(1) further consider the matter;

(2) modify or cancel any action;

(3) alter a rule, practice, or ruling;

(4) explain in detail the administrative action in question; or

(5) rectify an omission.

j. At the ombudsperson’s request, the department shall, within the time specified, inform the ombudsperson about any action taken on the recommendations or the reasons for not complying with the recommendations.

k. If the ombudsperson concludes, based on the investigation, that there has been, or continues to be, a significant issue regarding an inmate’s health, safety, welfare, or rehabilitation, the ombudsperson shall report the finding to the Governor and the Legislature.

l. Before announcing a conclusion or recommendation that expressly, or by implication, criticizes a person or the department, the ombudsperson shall consult with that person or the department. The ombudsperson may request to be notified by the department, within a specified time, of any action taken on any recommendation presented. The ombudsperson shall notify the inmate, if appropriate, of the actions taken by the department in response to the ombudsperson’s recommendations.

m. The ombudsperson shall make available to inmates confidential means by which to report concerns or otherwise submit complaints to the ombudsperson, which may include electronic means or a locked box, accessible only by the ombudsperson and the employees of the ombudsperson. All measures shall be taken to ensure there is no risk or credible fear of retaliation against inmates for submitting complaints to the ombudsperson.

n. Submission of complaints to the ombudsperson shall not be part of the department administrative grievance or appeal process, and the ombudsperson’s decisions shall not constitute agency action. Nothing in this section shall be deemed to constitute part of the administrative exhaustion process. The ombudsperson shall not require inmates to file grievances or other inquiries as part of the department’s system to be considered ripe for review by the ombudsperson.

9. (New section) The corrections ombudsperson shall conduct inspections of State correctional facilities in accordance with the provisions of this section.

a. The ombudsperson shall conduct regular inspections of all department facilities and issue public reports of all inspections.

b. The ombudsperson may inspect, examine, or assess all aspects of a facility’s operations and conditions including, but not limited to:

(1) staff recruitment, training, supervision, and discipline;

(2) inmate deaths or serious injuries;

(3) incidences of physical and sexual assault;

(4) medical and mental-health care;

(5) use of force;

(6) inmate violence;

(7) conditions of confinement;

(8) inmate disciplinary processes;

(9) inmate grievance processes;

(10) substance-abuse treatment;

(11) educational, vocational, and other programming;

(12) family visitation and communication practices; and

(13) rehabilitation, reentry, and integration practices.

c. The ombudsperson shall utilize a range of methods to gather and substantiate facts, including observations, interviews with inmates, inmate surveys, document and record reviews, video and tape recordings, reports, statistics, and performance-based outcome measures.

d. Facility and other governmental officials are authorized and shall be required to cooperate fully and promptly with inspections.

e. The ombudsperson shall be vested with the authority to conduct both scheduled and unannounced inspections of any part or all of the facility at any time. The ombudsperson shall adopt procedures to ensure that unannounced inspections are conducted in a reasonable manner.

f. Facility administrators shall be provided an opportunity to review reports and provide feedback about them to the ombudsperson before their dissemination to the public, but the release of the reports is not subject to approval from any entity or person outside the office.

g. Reports shall apply legal requirements, best correctional practices, and other criteria to objectively and accurately review and assess a facility’s policies, procedures, programs, and practices; identify systemic problems and the reasons for them; and proffer possible solutions to those problems.

h. Subject to reasonable privacy and security requirements, the ombudsperson’s reports shall be public, accessible through the Internet, and distributed to the media, Legislature, Attorney General, and Governor.

i. Facility administrators shall publicly respond to monitoring reports; develop and implement in a timely fashion action plans to rectify problems identified in those reports; and to semi-annually inform the public of their progress in implementing these action plans.

j. The ombudsperson shall continue to assess and report on previously identified problems and the progress made in resolving them until the problems are resolved.

10. (New section) The corrections ombudsperson shall be provided access to correctional facilities and inmate records in accordance with the provisions of this section.

a. The ombudsperson shall have reasonable access to correctional facilities at all times necessary to conduct a full investigation of an incident of abuse or neglect or to conduct a facility inspection, including the opportunity to interview any inmate, department employee, or other person, or the alleged victim of abuse who is reasonably believed by the facility to have knowledge relevant to an inspection or incident under investigation.

b. Access to investigate a complaint shall be afforded when:

(1) an incident is reported or a complaint is made to the office;

(2) the ombudsperson determines there is probable cause to believe that an incident has or may have occurred; or

(3) the ombudsperson determines that there is or may be imminent danger of serious abuse or neglect of an inmate.

c. The ombudsperson shall have reasonable access to all department facilities, including all areas which are used by inmates, all areas which are accessible inmates, and to programs for inmates for the purpose of:

(1) providing information about person’s rights and the services available from the office, including the name, address, and telephone number of the office;

(2) monitoring compliance with respect to the rights and safety of inmates; and

(3) inspecting, viewing, photographing, and video recording all areas of the facility.

d. The ombudsperson shall be vested with the authority to regularly meet, interview, and privately and confidentially communicate with any person, including staff and inmates, both formally and informally, by telephone, mail, and in person.

e. The ombudsperson has the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the department that the ombudsperson considers necessary in an investigation of a complaint or the inspection of a facility, including confidential Special Investigation Division reports and records. The department shall assist the ombudsperson in obtaining the necessary releases for those documents which are specifically restricted or privileged for use by the ombudsperson.

f. Following notification from the ombudsperson with a written demand for access to agency records, the delegated department staff shall provide the ombudsperson with access to the requested documentation not later than 20 business days after the ombudsperson’s request. If the records requested by the ombudsperson pertain to an inmate death, threats of bodily harm including, but not limited to, sexual or physical assaults, or the denial of necessary medical treatment, the records shall be provided within five days unless the ombudsperson consents to an extension of that timeframe.

g. Upon notice and request by the ombudsperson, a State, county, or municipal government agency or entity that has records relevant to a complaint or an investigation conducted by the ombudsperson shall provide the ombudsperson with access to the records.

h. The ombudsperson shall work with the department to minimize disruption to the department’s operations due to ombudsperson activities and shall comply with the department’s security clearance processes, provided those processes do not impede the ombudsperson from carrying out the responsibilities set forth in this section.

i. The ombudsperson shall be authorized to hold public hearings, to subpoena witnesses and documents, and to require that witnesses testify under oath.

j. The ombudsperson shall enact procedures to enable facility administrators, line staff, inmates, and others to transmit information confidentially to the monitoring entity about the facility’s operations and conditions. Adequate safeguards shall be established to protect persons who transmit information to the monitoring entity from retaliation and threats of retaliation.

k. Facility and other governmental officials shall be authorized and required to cooperate fully and promptly with the ombudsperson. To the greatest extent possible and consistent with the ombudsperson’s duties and responsibilities under P.L. c. (pending before the Legislature as this bill), the ombudsperson shall collaboratively and constructively work with administrators, legislators, and other appropriate persons to improve the facility’s operations and conditions.

11. (New section) Correspondence and communication with the corrections ombudsperson shall be confidential and protected as privileged correspondence in the same manner as legal correspondence or communication.

a. The ombudsperson shall establish confidentiality rules and procedures for all information maintained by the office.

b. The ombudsperson shall treat all matters under investigation, including the identities of recipients of ombudsperson services, complainants, and persons from whom information is acquired, as confidential, except as far as disclosures may be necessary to enable the ombudsperson to perform the duties of the office and to support any recommendations resulting from an investigation. Upon receipt of information that, by law, is confidential or privileged, the ombudsperson shall maintain the confidentiality of the information and shall not further disclose or disseminate the information except as provided by applicable federal or State law or as authorized by this section.

c. To the extent the ombudsperson reasonably believes necessary, the ombudsperson:

(1) shall reveal information obtained in the course of providing services to prevent reasonably certain death or substantial bodily harm; and

(2) may reveal information obtained in the course of providing ombudsperson services to prevent the commission of a crime.

d. If the ombudsperson believes it is necessary to reveal investigative records pursuant to subsection c. of this section, the ombudsperson shall provide a copy of what is intended to be disclosed to the department for review and application of legal exemptions prior to releasing the records to any other person. If the ombudsperson personally receives identifying information concerning a member of the corrections staff during the course of an investigation that the ombudsperson determines is unrelated or unnecessary to the subject of the investigation or recommendation for action, the ombudsperson shall not further disclose the information. If the ombudsperson determines that the disclosure is necessary to an investigation or recommendation, the ombudsperson shall contact the staff member, as well as the bargaining unit representative. before any disclosure.

12. (New section) A civil action shall not be brought against any employee of the Office of the Ombudsperson for the good faith performance of responsibilities under P.L. c. (pending before the Legislature as this bill).

a. A discriminatory, disciplinary, or retaliatory action shall not be taken against a department employee, subcontractor, or volunteer, an inmate, or a family member or representative of an inmate for any communication made, or information given or disclosed, to aid the office in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.

b. This section is not intended to infringe on the rights of an employer to supervise, discipline, or terminate an employee for other reasons.

13. (New section) An advisory board shall be established to advise the Office of the Corrections Ombudsperson. The Governor shall appoint three positions, the President of the Senate shall appoint three positions, and the Speaker of the General Assembly shall appoint three positions. The advisory board shall designate positions for representatives of the following areas of expertise: investigations, health care, sexual assault victims’ advocacy, social work, occupational safety and health, and research and data analysis. At least one position on the advisory board shall be filled by a family member of an inmate or by a formerly incarcerated person.

14. This act shall take effect on the first day of the seventh month next following enactment.