Disciplinary infractions are a fact of life for inmates incarcerated within the Federal Bureau of Prisons.  Simply put, those incarcerated in federal prison will likely have to defend against incident reports at some point during their incarceration.  Learning how to defend against a disciplinary action is not something that should be done after an incident report has been issued.  The methodology necessary to correct a disciplinary infraction should be learned before the problem has even occurred.  This way the prisoner has the best chance at mitigating the issue at hand or even officially expunging it.

Constitutional Standards

Prison disciplinary proceedings involve various safeguards, chief among them the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.  These protections are provided to prisoners via two Supreme Court decisions.  The first, Wolff v. McDonnell, 418 U.S. 539 (1976), provides prisoners with several procedural due process rights: advanced written notice of the hearing on the claimed violation; an opportunity to defend oneself against the charges, including the right to call witnesses and to present documentary evidence; to be heard by an impartial fact-finder; and to be provided with a written statement by the fact finder setting forth the evidence relied upon for the disciplinary action. Id., at 557-58.  It should be noted that these rights are not all-inclusive and absolute; each is subject to reasonable restrictions that have been developed in the wake of Wolff and its progeny.  In general, most state and federal correctional authorities have drafted procedural rules with the intention of respecting the Wolff standard, especially when “good time” credits are at stake, and constitutional protections must be applied.

The standard applied for determining guilt in such matters usually finds it genesis in Superintendent v. Hill, 472 U.S. 445 (l985), which set forth the “some evidence “test.  Id., at 455.  This standard is far removed from the “reasonable doubt” test applied in a criminal case; indeed, it is a lower hurdle than even that applied in civil litigation.  Under the “some evidence” standard, prison officials need not demonstrate that the disciplinary decision is the right one, or even reasonable.  They must simply demonstrate that there is some evidence in the record to support a guilty finding, and the finding was not based on arbitrary reasoning. Id.  As such, court review of prison disciplinary matters is highly deferential, and any attempts to overturn such a decision on the weight of the evidence must usually be achieved at the administrative level.

The Process

Federal Bureau of Prisons staff must issue an incident report within 24 hours of becoming aware of a violation of BOP disciplinary policy.  This means that they will write an incident report and either issue it directly to the inmate, or forward it to the lieutenant’s office for them to deliver.  Regardless of who issues the inmate a copy of the incident report, it must be done within 24 hours of the actual incident.

If the incident report is for a 100 or 200 series infraction, the guard or lieutenant has the option of confining the inmate in the Special Housing Unit pending resolution of the matter.  This is not generally an option for those charged with a 300 or 400 series infraction.  This decision is generally delegated to that of the lieutenant on duty.

When being issued the incident report, the inmate has the option of making a statement and of calling witnesses.  As indicated below, it is advised that the inmate should refrain from making any sort of admission.  All that should be said is, “I wish to contest the charge(s) against me.”

Regardless of whether or not the inmate has been placed in the SHU pending resolution of the disciplinary matter, they will be seen by the Unit Disciplinary Committee (UDC) — composed of one or two members of their Unit Team (depending on whether the incident report is for a 100/200 or 300/400 series incident report) — within five workdays of the incident report being issued to the inmate.  If the disciplinary infraction is for a 300 or 400 series incident report, the UDC has the option of making a finding (and sanctioning the inmate) or referring the charges to the Discipline Hearing Officer (DHO).  If the disciplinary infraction is a 100 or 200 series offense, the UDC must refer the charges to the DHO.  If the UDC refers the charges to the DHO, they must ask the inmate if he/she would like the assistance of a staff representative and if he/she would like specific witnesses to be called.

Regardless of whether the charges are referred to the DHO or if the UDC makes a finding, the inmate will have a chance to make a statement and attempt to call witnesses.  This will be discussed below.

If the inmate is found not guilty at the UDC hearing (a very rare occurrence), the charges and all record thereof will be destroyed.  If not, they have up to 20 days to appeal the finding via a BP-9 (appeal to the Warden’s Office).

If the charges are referred to the DHO, the inmate will be brought in front of the DHO typically within two or three weeks of the UDC’s referral.  Once at the DHO hearing, the inmate’s staff representative (if applicable) will be present and any witnesses (or their written statements) should be present.  If either of these conditions remains unfulfilled, the inmate can request a delay until they can be provided for.

If the inmate is found not guilty at the DHO hearing (also a very rare occurrence), the charges and all records thereof will be destroyed, as is the case with acquittals at the UDC hearing.  If not, they must wait until the DHO Report is issued before filing an appeal.  While policy states that the DHO Report is to be issued within 20 workdays of the DHO hearing, practice says that the inmate will receive the DHO Report within about 2 or 3 months of the hearing.  Once the DHO Report has been issued, the inmate has 30 days to appeal the finding via a BP-10 (appeal to the applicable Regional Office).

Before an Incident Report Has Been Issued

If a federal inmate is aware that they might be at risk of receiving an incident report, they should start by speaking with the possible reporting officer on an informal basis.  They should attempt to convince the reporting officer to not issue an incident report in the first place.  This can be achieved by attempting to mitigate the conduct or try to convince the officer that an incident report is not necessary.  The prisoner should not admit or acknowledge any culpability.  If they do, they are providing additional evidence to the reporting officer, evidence which will have to be overcome later on (either during a hearing or on appeal).

At the Lieutenant’s Office

Often when an inmate is issued an incident report they will be called to the Lieutenant’s Office for issuance of the Incident Report.  Often, this encounter can result in an attempt to intimidate the inmate into an admission of guilt.  If this occurs, the inmate should remain calm and remember that they can only harm themselves by making admissions.  Simply put, if the BOP has enough evidence, they will issue an incident report.  If not, they won’t, and they are on a fishing expedition.  The inmate shouldn’t willingly provide evidence to those bringing charges against them.

Inmates should never admit to any alleged conduct at this stage of the disciplinary process.  In my practice, I see this transpire far too often.  When the inmate admits to any part of the allegations, they place another nail in their coffin.  At this stage in the disciplinary process, inmates should state “I contest all charges against me” and leave it at that.  Anything more can only harm them and does not mitigate any of the circumstances.  The lieutenant is not there to help the inmate; he or she is there to gather evidence to sustain a finding of guilt.

Preparing a Defense

After the incident report has been issued, the inmate knows that they will have to defend themselves against disciplinary charges.  The best way to do this is to analyze the incident report and the situation for the following:

1) Was the incident report issued within 24 hours of staff becoming aware of the incident?  If not, is there a memorandum explaining why a delay occurred (e.g., SIS investigation)?

2) Is the description of the incident report factually correct?  Did the inmate commit any or all of the described components of the alleged disciplinary violation?  If not (to any part), this becomes part of the defense and part of the appeal (if applicable).

3) Are there any witnesses who can be called to corroborate any part of the inmate’s position?  A particular witness doesn’t have to be able to verify everything, but if they can verify a portion of the inmate’s position, then they are valuable.  It is best to ask witnesses to write a witness statement, date the statement, and sign it.  Witnesses can be asked for their testimony to be focused on a specific defense component.  It is a bad idea for an inmate to request live witnesses (regardless of if inmates or others).  This is because witnesses can be intimidated or refused.  Instead, a written witness statement can be concrete, absolute, and assist in the creation of a record from which to appeal.  Staff witnesses will probably not write a statement for an inmate.  As such, they can only be live witnesses.

4) The inmate should find or request for any applicable evidence to be retained for the hearing.  This could be camera recordings, radio traffic, or other forms of evidence.  Remember, witness statements are a valuable form of evidence.

5) The vast majority of disciplinary hearings result in a finding of guilt.  As such, it is important for the accused inmate to prepare the record for appeal (where acquittal and mitigation are more likely).  A written personal statement can become a central point of the record from which an appeal can be based (e.g., the hearing officer not taking into consideration the statement as evidence).  When writing a statement, it is important to have defensive points prepared. These are what will be argued in the statement.  Ideally, the statement will be between 1 and 2 typed pages long, will cite both policy and federal regulations, and clearly present the inmate’s argument.

When the Case is Hopeless: Mitigation

Often cases come across my desk where there really isn’t a good defense.  This is because the inmate is clearly guilty of the action at hand.  Not only guilty, but their guilt is extensively documented through various forms of evidence.  If this is the case — as in the case of an inmate being in a fight which is captured on camera — the inmate should mitigate.  This means trying to explain away the issue to the Unit Discipline Committee members and/or the Discipline Hearing Officer.  In cases like this, the accused inmate should present the issue in a mitigating light.  They should present the least offensive set of circumstances and reasons as possible.  This will clearly help with mitigating whatever sanctions are imposed.

After the sanctions are imposed by the appropriate hearing body, the inmate should still appeal the finding.  This is a rule of thumb.  Always appeal.  By doing so on procedural grounds, the sanction might still be further mitigated and, if procedural issues are present, the matter might be expunged.

At the Unit Disciplinary Committee Hearing

According to Federal Bureau of Prisons (BOP) policy, inmates are ordinarily seen by their Unit Discipline Committee (UDC) within 5 business days of the incident report’s issuance.  At this hearing, the inmate will have a chance to make a statement and to request witnesses.  Since the inmate will have already located witnesses and prepared a written statement, this hearing is just a formality.  The accused inmate will either be found guilty or innocent of the charges lodged against them.

There is no need for the inmate to be concerned with making a passionate plea of innocence since this simply does not work.  What does work is a strong written statement, effective witness declarations, and a steadfast assertion of innocence.  As long as a portion of the description enclosed in the incident report is incorrect, the inmate has a chance and should attack that incorrect portion vigorously.

Referrals to the DHO from the UDC

If the inmate is charged with a 100 or 200 series incident report, or if the UDC decides to refer a 300 or 400 series incident report to the DHO, the inmate will have to go in front of the DHO to plead their case.  If this is the case, the UDC members will present the inmate with a statement of rights and will ask the inmate if he or she would like witnesses to be called and if they would like to be assigned a staff representative.  Any witnesses to be called should be listed on the form which is provided.  The same is true of a staff representative.

It is often a good idea for all witnesses to be noted on the form, but for a notation to be made next to each witness which states that a written statement has already been obtained.  This way the DHO won’t call the witnesses to testify at the hearing.  This goes back to written statements being the best possible kind of evidence from a witness.  By eliminating the possibility of witness intimidation and poor witness testimony, the inmate’s defense will be strengthened and an accurate record from which to appeal will be cemented.

As for a staff representative, the inmate should always request one, even if the staff representative can’t really help the inmate.  The staff representative should generally be a sympathetic person of higher rank since front line officers are reluctant to assert an inmate’s rights against a DHO or lieutenant, who outrank them.  In cases where evidence is available, a staff representative can review and question the evidence on the inmate’s behalf.  The same is true with confidential informants and their testimony.

At the Discipline Hearing Officer Hearing

The same basic principles apply to the Discipline Hearing Officer (DHO) hearing as apply to the UDC hearing.  The accused inmate should have already prepared a written statement and have procured written statements from as many witnesses as possible.  These written statements can testify to both the facts and to the inmate’s character, though character witnesses can be limited by the DHO.  Thus, only one or two statements as to the inmate’s character are necessary.  The rest should testify as to the facts of the case.

The best defense an inmate has is their own written statement and those of their witnesses.  As such, the inmate should rely upon these.  If the inmate is going to fight the disciplinary charges, they should not admit to any component of the alleged infraction.  The focus should be on their statement and on preparing a record from which to base an appeal.

Appeals

If an inmate is found guilty by the UDC or DHO, they have the right to appeal the finding.  Appeals of UDC action are completed on a BP-9 (appeal to the Warden) and appeals of DHO action are completed on a BP-10 (appeal to the applicable BOP Regional Office).  It is advised that any inmate pursuing the Administrative Remedy Program should either be experienced at filing grievances or should ask someone who is.  This can be facilitated by an attorney experienced in such matters or by a competent jailhouse lawyer.  With experienced counsel, the odds of having the matter expunged or mitigated increase significantly.

A Challenging Road Ahead

Once disciplinary proceedings are initiated against an inmate, chances are that the inmate will be found guilty.  While it would be nice to say that due process would ensure a fair hearing with an impartial decision-maker, this is usually not the case.  When an inmate is charged with a disciplinary infraction, they are accused by a BOP staff member and the merits of the case are decided by BOP staff members (who tend to make statements such as “The reporting officer’s account is more reliable since they have no reason to lie.”).  Often, the entirety of the evidence is simply the reporting officer’s statement and nothing more.  As such, the vast majority of cases, which are decided by UDCs and DHOs, result in findings of guilt.  But when the accused is informed of how to properly present their defense, the odds can turn in their favor.

In terms of disciplinary proceedings, much of my practice is focused on mitigating the damage caused by client admissions and creating a record from which to base an appeal.  This is because inmates generally have a better chance at a fairer outcome when appealing to the Regional or Central Office levels than at the local institutional level.  By being informed, accused inmates gain a fighting chance at defense and vindication.  Without it, they are just pawns waiting to be pronounced guilty.

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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