By Christopher Zoukis
The vast majority of inmates within the Federal Bureau of Prisons (BOP) will eventually find themselves the focus of a disciplinary proceeding.  This is because BOP disciplinary policy includes everything from the seemingly inconsequential to the criminal.  In fact, federal inmates are known to receive incident reports for actions which they weren’t even aware were prohibited.  And, once these proceedings commence, it is too late to learn how to defend against them.  This article aims to provide a crash course on how inmates can defend themselves against prison disciplinary proceedings.

The Law

Disciplinary proceedings are generally governed by due process principles announced in two Supreme Court decisions.

Wolff v. McDonnell, 418 U.S. 539 (1974), affords prisoners several rights when facing disciplinary proceedings that implicate the length of sentence or “good time” credits: the right to advanced written notice of the charges; the right to present documentary evidence and witnesses on his or her behalf; the right to be heard by an impartial fact finder; and, if found guilty, the right to a written report on the evidence relied upon to establish guilt. Id., at 557-58.  The standard of proof required to meet constitutional standards is the “some evidence test,” which requires that prison officials base their finding on actual evidence of the inmate’s guilt; the test does not require that the evidence be persuasive, but only reasonable, based on the record, and not arbitrary. Superintendent v. Hill, 472 U.S. 445, 455 (1985).  A reviewing court will not often disturb a prison disciplinary finding if these conditions are met.

The Incident

The disciplinary process starts when BOP staff reasonably believe that an inmate has committed a prohibited act.  When this has occurred, the reporting officer completes an incident report which identifies the inmate in question, lists the infraction’s code, and describes the conduct engaged in.  This incident report is forwarded to the Lieutenant’s Office for processing.

If an inmate is aware that an officer has witnessed them engaging in a prohibited act, the inmate is advised to speak with the officer concerning the act in an effort to mitigate the conduct.  If the officer seems dead set on initiating an incident report, the inmate in question should not admit to any prohibited conduct at all.  When an officer is determined to initiate disciplinary proceedings, no amount of clarification or mitigation will resolve the matter.  All it can do is provide more evidence for the BOP to use to find the inmate guilty of the alleged infraction.

Issuance of the Incident Report

Within 24 hours of staff becoming aware of the incident, they must issue an incident report to the inmate in question.  This incident report is typically issued by the lieutenant on duty.  When being issued an incident report, the lieutenant will inquire with the inmate if they wish to make a statement.  Categorically, the inmate should decline.  At most they should state “I contest all charges against me.”

Simply stated, if the BOP has the evidence, they will charge the inmate with engaging in the prohibited act.  If not, they are fishing for additional information with which they can charge the inmate with a prohibited act.  When in doubt, the inmate should decline to make any sort of statement.

If the incident report is for a 100 or 200 series infraction, the lieutenant has the option of locking the inmate in the Special Housing Unit (SHU) pending resolution of the disciplinary matter.  This is handled on a case-by-case basis.

Preparing for Disciplinary Hearings: Defending or Mitigating

After the inmate receives the incident report from the lieutenant, they must analyze the incident report to decide their plan of action.  The accused can either defend against the entire incident report or they can mitigate the allegations.  Generally speaking, if the incident report involves conduct which was clearly seen by the reporting officer, caught on tape, or in which there is a preponderance of evidence, the inmate should attempt to mitigate the conduct.  If not, the inmate should prepare to defend themselves against the alleged misconduct.

If the inmate opts to mitigate the conduct alleged in the incident report, they should try to frame their conduct in the best possible light and present this to the applicable hearing body (whether the Unit Discipline Committee or the Discipline Hearing Officer).  They should try to be as friendly and remorseful as possible.  In this strategy, the inmate is attempting to minimize damage (sanctions), not seek an acquittal.  Hearing bodies are often willing to go light on those who admit to the misconduct and plead guilty.  So, this can be an effective strategy if the inmate is clearly guilty.

If the inmate opts to defend against the incident report and plead not guilty, they have their work cut out for them.  First, they should analyze the incident report to ensure that it was issued within 24 hours of the time staff became aware of the incident.  Second, they should read the description of the incident report sentence-by-sentence and come up with arguments against each sentence.  Third, they should brainstorm who witnessed the alleged misconduct and if there is any evidence (e.g., camera recordings, radio traffic, etc.) which can be utilized to support a defense.  Last, they should prepare a one to two page typed statement which they will present to the Unit Discipline Committee or Discipline Hearing Officer.

Written statements are very important since they create an absolute record which can be used on appeal.  As such, any pro-defense witnesses should be asked to write a statement as opposed to testifying in-person.  When asking for a written witness statement, the witness can be asked for their testimony to be focused on specific facets of the inmate’s defense.  As for the accused inmate’s statement, this is a terrific defense document since the statement itself becomes a part of the record and can be used to show that the hearing officer didn’t take all evidence into account.

Unit Discipline Committee Hearing

Within 5 work days of the inmate being issued the incident report by the lieutenant they will be seen by their Unit Discipline Committee (UDC).  This is a hearing body which consists of either one or two members of the inmate’s unit team.  At this hearing the inmate will be asked if they would like to make a statement.  This is where the inmate’s written statement comes into play.  They can also deliver the signed and dated witness statements.

The UDC has the option of either finding the inmate guilty of the charged prohibited act, finding the inmate guilty of a similar prohibited act, or finding the inmate not guilty.  Almost categorically, the UDC will find the inmate guilty of the charged misconduct.

If the inmate is charged with a 100 or 200 series infraction — or if they are charged with a 300 or 400 series infraction and the UDC desires to refer the matter to the Discipline Hearing Officer (DHO) — the UDC will make a sentencing recommendation while withholding judgment.  The matter will be sent to the DHO for hearing.

If the incident report is referred to the DHO, the UDC members will advise the inmate of their rights at the DHO hearing and inquire if the inmate would like for any witnesses to be called or a staff representative assigned.

Discipline Hearing Officer Hearing

The DHO hearing is much like the UDC hearing.  The inmate will be given a chance to make a statement and to present documentary evidence of their innocence.  As with the UDC hearing, the inmate should present a written statement contesting the charges and present any written witness statements which they’ve procured.  The DHO has the same judgment options as the UDC has: finding the inmate guilty of the charged conduct, guilty of similar conduct, or finding the inmate innocent.  The difference is that the DHO has the option of sanctioning the inmate to time in the Special Housing Unit and of sanctioning the inmate to the loss of good conduct time.

Appeals

As a rule of thumb, all disciplinary convictions should be appealed.  Even if the inmate chose the mitigation track, the BOP might have violated procedural due process rights.  Appeals of UDC action are handled via a BP-9 (appeal to the Warden’s Office) and must be filed within 20 days of the finding.  Appeals of DHO action are handled via a BP-10 (appeal to the applicable BOP Regional Office) and cannot be appealed until the DHO Report has been issued to the inmate (something which is supposed to take no more than 20 business days from the date of the finding, but often takes upwards of 2 to 3 months).

(First published by SubmitYourArticle.com)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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