In an effort to maintain control over and enhance accountability amongst their unwilling clients, prison systems employ the use of disciplinary policies. These disciplinary policies consist of lists of violations that are usually coded and grouped with like charges and sanctions. The severity of the infraction is usually matched to the severity of the sanctions, which usually include losses of privileges (i.e., restrictions on telephone usage and visitation, financial penalties, or placement in special housing units). All inmates are provided with a list of all disciplinary code violations and are expected to abide by the disciplinary code at all times. Often this list is presented in an Admission & Orientation handbook which all new arrivals are issued.
The Common Problem
The problem with prison disciplinary codes is that they are sometimes byzantine in their complexity, consisting of long lists of actions that lack qualifiers or descriptions. An example is the 304-code violation (Conducting a Business) within the Federal Bureau of Prisons (BOP). Most persons can accept that selling some sort of property or service would probably equate to conducting a business. But what about paying a paralegal to research a legal issue? What about hiring an editor to edit a manuscript? What about retaining a web designer to create and manage a website? All of this gray area is not covered by the policy itself and clarifications are not forthcoming from BOP staff. The same can be true of any number of other disciplinary code violations. Because of these convoluted sets of policies and procedures, many inmates will one day find themselves facing prison disciplinary proceedings.
No Simple Solution
Unfortunately, there is no simple solution to the disciplinary policy conundrum; there are, however, strategies to defeat wrongful applications of such policies. Since most prisoners eventually find themselves facing a disciplinary investigation for potentially violating a policy (which could be actually violating it or attempting to violate it), all prisoners need to understand the different facets of a proper defense to such charges and they need to understand the policies and procedures which are to be employed (both from a defensive context and from a constitutional protections context). In this article, I will focus on the central defensive component of the personal statement which refutes alleged disciplinary violations.
Gathering the Facts
When an inmate has been accused of violating their prison’s disciplinary policy they must immediately jump into action, because the accused inmate has to act as their own attorney in such proceedings. The first step is to obtain a copy of the alleged misconduct report. Luckily, this is a simple task since all prison systems are required to provide written notice to inmates of the disciplinary charges lodged against them prior to a hearing. This document is often called a Disciplinary Report, Misconduct Report or, in the BOP, an Incident Report.
After the inmate has received a copy of the Incident Report they should evaluate the report for its various components. The inmate should focus on the description of the alleged misconduct since this is the area that must be refuted. It is advised that the inmate read this section sentence-by-sentence and craft an argument against each and every component alleged. This is vital. While there will probably be several components that can’t be refuted (e.g., location, person, time, etc.), many other areas are much grayer.
A good example from my practice has to do with an inmate who was charged with not having his property put away. The incident report described the property which was left out in the cell and the fact that the accused inmate was in the cell when the correctional counselor noticed the unsecured property. While at the ensuing prison disciplinary hearing he was found guilty. On appeal he was acquitted of all charges since he was able to show that while the property was left out, he was in the cell and was preparing to take a shower; housing unit regulations did not forbid an inmate to leave his clothes on the chair while undressing for a shower.
Another example from my practice has to do with an inmate who was caught with an intoxicant in his locker. Upon a random search, the unit officer found bottles of homemade wine. The inmate was locked in the Special Housing Unit (SHU) pending the investigation. Luckily, we were able to locate a number of witnesses (both factual and character witnesses) who were able to refute the circumstances. It quickly became apparent that his cellmate had hidden the booze in his locker to “set him up.” Through a concerted effort, my client was acquitted of the charges, and the Incident Report was removed from his file.
As each argument presents itself, the inmate should write it down. The inmate will need to brainstorm on potential evidence and/or witnesses that could be utilized. This could be camera evidence, citations to prison policy, federal or state regulations, or those who witnessed the event or who could be called as character witnesses. At this stage, the accused inmate should be gathering all potentially usable evidence.
The Personal Statement
As the defensive evidence piles up (hopefully), the inmate will have to start sifting through it. The more important components will rise to the top (and be kept) while the less important components will fall to the bottom (and be thrown away). The important items should be incorporated into the accused inmate’s personal statement, which will eventually be presented to the hearing officer.
The ideal form of the personal statement is a typed, one-page statement. This statement will present the stronger arguments against the alleged misconduct. These arguments could be from an evidentiary perspective, a procedural or policy angle. Regardless of what argument is made, it should be presented in descending order of importance, the strongest argument first, followed by other substantially strong arguments. There is no benefit in including rambling explanations or weaker arguments. It is better for the inmate to present four strong paragraphs of defense than eight weak ones.
When presenting a refutation of the incident report, it is always a good idea to cite prison policy (e.g., Federal Bureau of Prisons Program Statement) and any applicable regulations (e.g., Code of Federal Regulations). The inmate will find valuable information in the disciplinary policy under which they have been charged since it provides clarifications and protocol. If the inmate is well versed in legal research, he or she can back up arguments made in the personal statement with case-law, but they should remember that the hearing officer is not an attorney and probably won’t understand complex legal arguments.
Presenting the Personal Statement
Eventually, the accused inmate will be called to a hearing to determine guilt or innocence. When this occurs the inmate should have all of their witness statements, documentary evidence, and personal statement together in a folder or a “Defense Packet.” All of this information should be together since the inmate will probably not receive an extension to locate anything which might be missing.
During the hearing, the hearing officer will inquire as to whether the accused inmate would like to make a statement. If so, the written statement should be presented. While the hearing officer might grumble about having to read a written statement, this is the best way to both present a reasoned argument and create a record of the argument (and evidence) presented.
Creating a Record From Which to Appeal
The sad truth about prison disciplinary hearings is that they are not usually impartial proceedings, as they are required to be under the law. Most inmates who are involved in prison disciplinary proceedings will be found guilty and sanctioned with the loss of privileges or other punishments. With few exceptions, no amount of effort or reasoned defense will overcome the hearing officer’s prejudice against the inmate. Many simply credit every allegation made by a fellow officer (the reporting officer) over those of the inmate who is defending himself/herself against the charged misconduct. As such, the goal of the hearing — and the written personal statement — is to create a record from which to appeal. Often this is how inmates receive reductions in sanctions and/or official extirpation of disciplinary proceedings.