By Kyla Elizabeth Sentes
The Federal Bureau of Prisons houses 206,760 prisoners in 193 federal institutions and 14 private contract facilities. While the exact figures aren’t readily available, it is estimated that tens of thousands of federal prisoners will be subject to prison disciplinary procedures annually. Some are even subject to several such proceedings each year. The consequences of these quasi-judicial proceedings are often many thousands of days of good conduct time forfeited as formal sanctions, in addition to decades of losses in privileges (e.g., email, commissary, visitation, telephone, etc.)
Today I sit down with Christopher Zoukis, author of College for Convicts: The Case for Higher Education in American Prisons (McFarland and Company, 2014) and contributing writer to both Prison Legal News and The Huffington Post, to discuss what federal prisoners should keep in mind when facing such proceedings.
Q) To begin, you’ve had your fair share of prison discipline proceedings. Care to present some background?
A) In 2012, I was charged with three incident reports for conducting a business (Code 334 infractions) for conduct related to my writing activities. This ended up landing me in the FCI Petersburg Special Housing Unit for five months, along with losing years’ worth of other privileges. Again, in 2014, I was issued four more incident reports for conducting a business, for much the same reasons. Unlike 2012, I was only sanctioned to years loss of privileges, not additional time in the hole.
Q) What was the end result of all of these incident reports?
A) After much preparation and hard work, each and every one of these incident reports was overturned on appeal. To date I have had clear conduct since 2010. Even so, I was forced to spend months in the hole, I lost my good conduct time and years upon years’ worth of privileges; the Federal Bureau of Prisons has no mechanism for making an inmate whole again after sanctions that should have never been levied in the first place.
Q) Was this a question of you really being a troublemaker? Or do you feel that there was something else behind these incident reports?
A) I certainly wasn’t that much of a troublemaker. Keep in mind, I wasn’t in trouble for drinking, getting high, or fighting. I was in trouble for writing, and doing so primarily about prison education. Prison administrators became angry at me due to the visibility of my work. In 2014 they also became very angry due to the attention I was drawing to my cellmate’s medical needs, for which they were providing substandard care—ultimately it turned out to be ALS. My former cellmate, Sangye Rinchen, is now housed at FMC Butner, where she is allegedly receiving better care. This is just the way that it goes. Most prisoners will receive incident reports for something—big or small—during their incarceration. But, if you’re a prison writer or jailhouse lawyer, you’re going to receive more than your fair share.
Q) So let’s talk about what advice you can provide to others who find themselves in such a predicament. Explain to me briefly the disciplinary process in the Federal Bureau of Prisons.
A) Once a staff member becomes aware of an issue, they must write an incident report and send it to the Lieutenant’s Office within 24 hours. The investigating lieutenant then summons the inmate, reads the description contained within the incident report, asks the inmate if they would like to make a statement, and then issues the inmate a copy of the incident report. Within five work days the inmate will be seen by their Unit Discipline Committee (UDC) for adjudication. There the inmate can make their case. If the incident report is for a 100 (Greatest Severity) or 200 (High Severity) series prohibited act, the incident report must be referred to the Discipline Hearing Officer (DHO), who then will hold a hearing within a few weeks at which the inmate can present their case. If convicted at either UDC or DHO, sanctions will start immediately.
Q) Now take us step-by-step through what the prisoner should do at each phase of the disciplinary process. What should they do if they know that they are going to be issued an incident report?
A) While it’s a longshot, the first step should be to speak with the prison staffer who’s planning on writing the incident report. If the alleged prohibited conduct is for a run-of-the-mill issue (e.g., being out of bounds, soft contraband, etc.), and the guard isn’t too much of a stickler, the inmate might be able to convince them to not write the incident report and to instead have the prisoner engage in some extra duty in the place of a formal incident report. But, the inmate should be careful. Guards have been known to also write prisoners up for attempting to get them to engage in misconduct. Bribery is also never the answer.
Q) What should they do at the Lieutenant’s Office?
A) You would think that federal prisoners, people already convicted of criminal offenses and sentenced to a term of imprisonment, would know better than to tell on themselves, but by-and-large, you’d be wrong. Most prisoners will admit to the alleged conduct at the Lieutenant’s Office, whether they believe it to be an offense or not, just in an effort to mitigate. All this does is provide prison officials with additional evidence to convict. A better approach is to simply state, “I have nothing to state at this time.” This protects the prisoner from being misquoted or simply telling on themselves. Generally speaking, at this phase of the process the prisoner can’t talk their way out of the shot.
Q) What should they do at UDC?
A) Leading up to the UDC hearing the prisoner should put in some serious time, and possibly some money, with a jailhouse lawyer, to prepare. This means crafting and typing a one- or two-page written statement to present at the UDC hearing. This typed statement should present their theory on the case and reference any additional requested evidence or documentary evidence being presented at the UDC hearing. Written witness statements should also be obtained from any non-prison employees who witnessed the incident or have something important, and supportive, to contribute.
When the inmate goes to UDC, they should present their written statement, a list of requested evidence to be reviewed, and their own documentary evidence (including the written witness statements). For the most part, UDC members will refuse to consider any of this. They do so to their own detriment because this builds procedural violations into the hearing—the presumption of guilt is always placed on the prisoner. The sad fact is that regardless of the facts, the prisoner will most likely be convicted, and their only real chance at justice is on appeal. And even if the UDC refuses to abide by Bureau of Prisons disciplinary regulations or review the written statement (or other evidence), those documents will become exhibits when appealing.
Q) If the case goes to the DHO, what should they do?
A) Generally speaking, the same process should be adhered to as at UDC hearings. The accused prisoner should put together a written statement and any applicable documentary evidence. In addition to this, the prisoner should also submit to the UDC body a list of witnesses (and what they can testify to) and assert the right to a staff representative for the DHO proceedings. The staff representative ideally should be a lieutenant not involved in the disciplinary process or another prison staffer that the inmate is on good terms with; someone who knows BOP policies well and will advocate for the accused.
Unlike UDC hearings, DHOs are usually pretty good at reviewing evidence. As such, the written statement and other evidence will be considered, although the guilty finding will most likely still be rendered. For prisoners a sloppy DHO hearing is best for an appeal, though DHOs tend to be better trained on due process and prison disciplinary regulations than their UDC counterparts.
Q) Are inmates convicted of disciplinary code violations permitted to appeal? Should they?
A) They most certainly can, and almost categorically always should. The appeal process for a UDC hearing is advanced on a BP-9 form (the blue one which goes to the warden’s office) and can be filed as soon as the hearing is over. The appeal process for a DHO hearing is advanced on a BP-10 form (the yellow one which goes to the applicable regional office) and can only be filed once the DHO report has been issued to the inmate, which is supposed to done within 20 days of the DHO hearing, but usually takes much longer.
A great way of presenting such disciplinary appeals is to team up with a quality jailhouse lawyer to put together a single page appeal which can simply be attached to the respective administrative remedy form (i.e., BP-9, BP-10, or BP-11). On this form the inmate should include first their procedural objections (e.g., the UDC body not reviewing all of the evidence, the DHO not calling a witness, lack of advanced notice of the offense, etc.), then objections based on the merits (e.g., anything concerning the inmate’s innocence of the alleged misconduct, the sufficiency of the evidence, etc.). As with the written statement for the UDC or DHO hearing, the inmate need not attack the actual conduct as it occurred, merely what is stated in the description section of the incident report. In addition to the attachment page, the inmate should include copies of any documentary evidence as exhibits (e.g., written witness statements, other exculpatory documents, etc.).
Q) Thanks for your time. In closing, what can we expect from you down the line? You’re scheduled for release in 201, what are your plans following release?
A) All very good questions. In terms of book projects, later on this year Prison Legal News Publishing will be releasing my next book, Correspondence Courses for Prisoners. I’m also cleaning up my Federal Prison Handbook, and hope to have that out sometime next year. No word yet on who will be publishing it, but it will most certainly be of interest to those interested in prison disciplinary proceedings as it has an extensive chapter on the topic, along with many other areas of federal incarceration.
As for me, I’m currently taking courses from Adams State University. My hope is to graduate with a Bachelor of Arts in Interdisciplinary Studies by late 2017. My areas of emphasis are legal studies and business. Following that, I hope to spend the rest of my time in prison studying for the LSATs. My hope is to get out, get settled into life outside of prison, and then sit for the LSATs and apply for law school. It’s a hard road, to be certain, but there are several others who have succeeded on this track and I hope to be the next on that short list of jailhouse lawyers-turned-attorneys.