A 11671: Establishes standards and procedures governing drug and special watches and temporary isolation based upon suspected ingestion or internal concealment of contraband.

  
  STATE OF NEW YORK ________________________________________________________________________ 11671  IN ASSEMBLY September 2, 2026 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Tapia) -- read once and referred to the Committee on Correction AN ACT to amend the correction law, in relation to enacting the "drug and special watch due process act" The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Short title. This act shall be known and may be cited as 2 the "drug and special watch due process act". 3 § 2. The correction law is amended by adding a new section 137-a to 4 read as follows: 5 § 137-a. Drug and special watches. 1. Definitions. For the purposes of 6 this section, the following terms shall have the following meanings: 7 (a) "Drug or special watch" means any placement, detention, confine- 8 ment, observation, temporary isolation, dry cell placement, or substan- 9 tially similar restriction imposed upon an incarcerated individual based 10 upon a belief that such incarcerated individual has ingested contraband 11 or is carrying or concealing contraband within the gastrointestinal 12 tract or rectum, regardless of the terminology used by the department to 13 describe such placement. 14 (b) "Non-invasive internal contraband detection technology" means a 15 body scanner, radiological imaging device, or other non-invasive tech- 16 nology, approved by the commissioner of health for use pursuant to this 17 section, that is capable of detecting, imaging, or otherwise indicating 18 the presence or absence of a foreign object or contraband within the 19 gastrointestinal tract or rectum. 20 (c) "Scan" means an examination conducted through the use of non-inva- 21 sive internal contraband detection technology. 22 (d) "Negative scan" means the result of a scan that does not indicate 23 the presence of contraband or a foreign object within the gastrointesti- 24 nal tract or rectum. 25 (e) "Positive scan" means the result of a scan that indicates the 26 presence of contraband or a foreign object within the gastrointestinal 27 tract or rectum. 28 (f) "Inconclusive scan" means the result of a scan from which the 29 presence or absence of contraband or a foreign object cannot reliably be 30 determined. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16309-01-6 
 A. 11671 2 1 2. Grounds for investigation and requirement of scan. (a) No incarcer- 2 ated individual shall be placed on a drug or special watch unless there 3 is probable cause, based upon specific and articulable facts, to believe 4 that such incarcerated individual has ingested contraband or is carrying 5 or concealing contraband within the gastrointestinal tract or rectum. 6 The officer or employee asserting such probable cause shall document in 7 writing, prior to placement whenever practicable: 8 (i) the specific facts and circumstances giving rise to such belief; 9 (ii) the date and time such facts or circumstances were observed or 10 reported; 11 (iii) the source of such information, provided that information iden- 12 tifying a confidential source may be withheld from the incarcerated 13 individual where disclosure would create a substantial risk to the safe- 14 ty of any person; and 15 (iv) the name and title of such officer or employee making such deter- 16 mination. 17 (b) A generalized suspicion, the incarcerated individual's discipli- 18 nary history, prior drug-related conduct, reputation, or presence in a 19 particular housing unit or area, without additional individualized 20 facts, shall not independently constitute probable cause under paragraph 21 (a) of this subdivision. 22 (c) (i) Prior to placement on a drug or special watch, an incarcerated 23 individual shall be examined using non-invasive internal contraband 24 detection technology. 25 (ii) The department shall ensure prompt access to non-invasive inter- 26 nal contraband detection technology at every correctional facility oper- 27 ated by the department, whether through equipment maintained at a 28 correctional facility, transportation to another correctional facility, 29 transportation to an appropriate medical facility, or another method 30 approved by the commissioner of health. 31 (iii) The temporary unavailability or malfunction of scanning equip- 32 ment shall not, on its own, constitute grounds for placement on a drug 33 or special watch. 34 3. Effect of scan results and authorization of placement. (a) Where a 35 scan produces a positive result, the superintendent or acting super- 36 intendent may authorize placement of the incarcerated individual on a 37 drug or special watch. 38 (b) (i) A negative scan shall create a presumption that the placement 39 of the incarcerated individual on a drug or special watch is not 40 warranted. 41 (ii) No incarcerated individual whose initial scan produces a negative 42 result shall be placed on a drug or special watch except where the 43 superintendent or acting superintendent personally determines in writing 44 that extraordinary circumstances, supported by specific and articulable 45 facts, establish probable cause notwithstanding such negative scan. Such 46 written determination shall: 47 (1) identify such extraordinary circumstances relied upon; 48 (2) explain why such extraordinary circumstances overcome such nega- 49 tive scan result; and 50 (3) state the date and time of such determination and the name and 51 title of the person authorizing placement of the incarcerated individual 52 on a drug or special watch. 53 (c) An inconclusive scan shall not be deemed a positive scan. Where an 54 initial scan results in an inconclusive scan, the department shall, 55 where medically appropriate, conduct a second scan. If such second scan 56 also results in an inconclusive scan, the incarcerated individual may be 
 A. 11671 3 1 placed on special watch provided that the superintendent or acting 2 superintendent personally determines in writing that extraordinary 3 circumstances, supported by specific and articulable facts, establish 4 probable cause notwithstanding the negative scan. 5 4. Notice and procedural protections. (a) Immediately upon placement 6 of an incarcerated individual on a drug or special watch, the department 7 shall provide such incarcerated individual with written notice stating: 8 (i) that such incarcerated individual has been placed on a drug or 9 special watch; 10 (ii) the specific factual basis for such placement; 11 (iii) the result of the initial scan; 12 (iv) where applicable, the extraordinary circumstances relied upon to 13 override a negative scan; 14 (v) the date and time such placement commenced; 15 (vi) such incarcerated individual's right to request a subsequent scan 16 pursuant to subdivision five of this section; and 17 (vii) the circumstances requiring termination of such placement on a 18 drug or special watch. 19 (b) An incarcerated individual shall be provided opportunity to make 20 an oral or written statement contesting the factual basis for continued 21 placement on a drug or special watch. Any such statement shall be 22 included in the record of such placement and considered during any 23 review of continued confinement. 24 (c) No adverse inference shall be drawn from an incarcerated individ- 25 ual's exercise of any right provided by this section. 26 5. Continued placement; right to subsequent scanning; mandatory termi- 27 nation. (a) An incarcerated individual placed on a drug or special watch 28 shall have the right to request a new scan after twenty-four hours of 29 such placement and during each twenty-four-hour period of continued 30 placement. The department shall inform the incarcerated individual of 31 such right upon initial placement and at least once during each subse- 32 quent twenty-four-hour period. 33 (b) Upon such request under paragraph (a) of this subdivision, the 34 department shall provide a new scan as soon as practicable, unless a 35 documented determination is made by a licensed health care professional 36 that the requested form of scanning is medically contraindicated. Where 37 one form of scanning is medically contraindicated, the department shall 38 make reasonable efforts to provide another form of non-invasive internal 39 contraband detection technology approved by the commissioner of health. 40 (c) Notwithstanding any other provision of law, where any scan 41 performed after initial placement on a drug or special watch results in 42 a negative scan, such drug or special watch shall terminate immediately. 43 (d) Where a subsequent scan remains positive, continued placement on a 44 drug or special watch shall be permitted only for so long as probable 45 cause continues to exist and only in accordance with all limitations 46 imposed by this section and section one hundred thirty-seven of this 47 article. 48 (e) Placement on a drug or special watch shall terminate immediately 49 upon the earliest occurrence of any of the following: 50 (i) the superintendent or acting superintendent is no longer satisfied 51 that probable cause exists to believe that the incarcerated individual 52 has ingested or internally concealed contraband; 53 (ii) all suspected contraband has been recovered and there is no inde- 54 pendent probable cause to believe additional contraband remains within 55 the incarcerated individual's body; 
 A. 11671 4 1 (iii) a licensed health care professional determines that continued 2 placement on a drug or special watch presents a risk to the incarcerated 3 individual's physical or mental health that cannot reasonably be miti- 4 gated while such placement continues; or 5 (iv) continued placement on a drug or special watch would violate 6 subdivision twenty-three of section two of this chapter or subdivision 7 six of section one hundred thirty-seven of this article. 8 (f) Where contraband is recovered but the department asserts that 9 additional contraband remains within the incarcerated individual, 10 continued placement on a drug or special watch shall require a new scan. 11 A negative result on such new scan shall require immediate termination 12 of the drug or special watch pursuant to paragraph (c) of this subdivi- 13 sion. 14 6. Application of limitations on segregated confinement. (a) Any drug 15 or special watch or temporary isolation imposed pursuant to this section 16 shall be subject to subdivision twenty-three of section two of this 17 chapter and subdivision six of section one hundred thirty-seven of this 18 article. 19 (b) A drug or special watch shall not be excluded from the definition 20 of segregated confinement under this chapter solely because the depart- 21 ment characterizes such placement as investigatory, administrative, 22 temporary, non-disciplinary, protective, for purposes of contraband 23 detection, or by any other designation. 24 (c) Nothing in this section shall be construed to create an exception 25 to any limitation or prohibition established pursuant to subdivision 26 twenty-three of section two of this chapter or subdivision six of 27 section one hundred thirty-seven of this article. 28 7. Documentation and records. (a) The department shall create and 29 maintain a record for each placement of an incarcerated individual on a 30 drug or special watch. Such record shall include, at a minimum: 31 (i) the correctional facility at which such placement occurred; 32 (ii) the specific factual basis for the initial determination of prob- 33 able cause; 34 (iii) whether each scan resulted in a positive scan, negative scan, or 35 inconclusive scan; 36 (iv) any written determination overriding an initial negative scan and 37 the extraordinary circumstances relied upon; 38 (v) each medical assessment or recommendation concerning continued 39 placement on such drug or special watch; 40 (vi) the date and time such drug or special watch began; 41 (vii) the date and time such drug or special watch ended; 42 (viii) the total duration of such placement; and 43 (ix) whether contraband was recovered. 44 (b) Records required by this subdivision shall be maintained for not 45 less than six years. 46 § 3. The commissioner of corrections and community supervision and the 47 commissioner of health shall take all actions necessary for the imple- 48 mentation of this act, including the promulgation of rules and regu- 49 lations and the approval, procurement, installation, or identification 50 of appropriate non-invasive internal contraband detection technology, on 51 or before the effective date of this act. 52 § 4. This act shall take effect on the one hundred eightieth day after 53 it shall have become a law. Effective immediately, the addition, amend- 54 ment and/or repeal of any rule or regulation necessary for the implemen- 55 tation of this act on its effective date are authorized to be made and 56 completed on or before such effective date.