As part of my role as a prison litigator and advocate, I review a number of Incident Reports and Disciplinary Hearing Officer (DHO) Reports every month. Most of the time I do a quick once over to advise fellow federal prisoners if they have good cause to appeal a disciplinary finding or to advise them of how to defend against alleged misconduct. In my experience, several essential components of any successful defense to disciplinary action in the Federal Bureau of Prisons have become apparent (which most certainly applies to disciplinary proceedings in state prison systems, too). By accused inmates adhering to these important disciplinary defense components, criminal defense attorneys and jailhouse litigators will have a fighting chance for acquittal and extirpation or mitigation on appeal for their clients.
Make no statements to staff about the alleged conduct. This is such a simple concept, but it is, by far, the most often overlooked defensive strategy. Far too often, prisoners come to me upset that they have been charged or convicted of a prison disciplinary infraction. They bring the incident report or DHO Report to me and ask what can be done. When I review the documentation, I see that they have already admitted to the prohibited conduct at issue (or a portion thereof). At that point, there isn’t a lot that can be done, either from an acquittal or a mitigation standpoint.
The number one rule for any defendant who is facing either criminal or prison disciplinary proceedings is to remain silent until they at least have a chance to sit down with competent counsel. This is true even if the inmate cannot retain an attorney since there are usually talented jailhouse litigators in any prison law library who can be of assistance. The point is simple: decline to comment until a defensive strategy is in place. The more an accused inmate says to staff about the conduct, the more it can and will be used against them as evidence. Admissions and disclosures should only be made as a defensive strategy, and their usage should be approved by experienced counsel before being applied.
The single greatest defensive technique that any inmate possesses is their ability to remain silent. When an inmate is formally charged with a prison disciplinary infraction, there is no talking oneself out of it. There is only digging a deeper hole or the same hole that is that much more challenging for competent counsel to dig the client out of.
Request Witnesses and Staff Representatives
When defending against prison disciplinary proceedings, it is always a good idea to request witnesses and a staff representative (if applicable). The accused inmate should only request witnesses which will be pro-defense and back up their assertions, though seemingly adverse witnesses (e.g., guards or administrators) could be asked to testify as to portions of the alleged misconduct. This should only be employed if the adverse witness didn’t witness the actual misconduct, but surrounding circumstances and those ancillary facts help prove the defendant’s innocence, or some level of mitigation (obviously, the reason to avoid adverse witnesses who actually saw the alleged misconduct is that they will say so to the factfinder (i.e., DHO or UDC), and this can only harm the defendant’s position).
Pro-defense witnesses are always of use. Not only do they provide more color for the factfinder to base their findings on, but they also provide a ready-to-use appellate point of the factfinder not considering all of the evidence or the “greater weight of the evidence.” Additional witnesses — whether in-person or via a written witness statement — are well worth the time of preparing. Their testimony can be the seeds of expungement on appeal.
At some prisons, Discipline Hearing Officers make it exceptionally challenging for witnesses to testify. One technique that is resoundingly successful is to request a staff representative who actually witnessed the event and who is a pro-defense witness. While this is not allowed by Federal Bureau of Prisons’ policy, DHO’s rarely catch on to this or object to it. By the accused inmate asking for a specific staff member to represent them, one who can testify on the inmate’s behalf, the inmate guarantees that the desired witness will be present. The DHO must delay a disciplinary hearing until the inmate’s staff representative is available (or the DHO could assign a different staff representative if the requested one is consistently unavailable).
Sometimes inmates accused of violating disciplinary policy lose sight of what evidence can be. So, let’s state it once and for all: helpful evidence is anything that proves an inmate’s defensive assertions, or disproves the allegations of the misconduct at hand. This can literally be anything. Evidence which I usually employ when preparing defenses for associates and clients include letters, written witness statements (from those inside and outside of prison), video surveillance evidence, radio traffic transmissions (which are recorded), log books (both housing unit and those held in the lieutenant’s office), recorded telephone calls (or the lack of available transcripts when at issue), and any other number of tangible items (or lack thereof). The point is to only enter into evidence items that can’t be used against the accused inmate. When on appeal, evidence which the Unit Disciplinary Committee or Discipline Hearing Officer doesn’t specifically note as reviewing, if they did but it appears that they did not do so, can be utilized. Factfinders have to evaluate all of the presented evidence. By not doing so, a strong case for mitigation, remand, or expungement is caused.
Make a Written, Not Verbal, Statement
This is another central point of any defense against allegations of inmate misconduct. It is not enough for an inmate to make a verbal statement to a Unit Disciplinary Committee or Disciplinary Hearing Officer. This is because statements are often taken out of context. In my professional experience, I’ve found UDCs and DHOs to listen to an inmate’s verbal statement for something which sounds like the inmate is acknowledging some small portion of the charged conduct. This small portion — which is often taken out of context — is then used to sustain a guilty finding. Written statements do away with such risk since the entire statement, including the context and argument, are retained.
But the more important aspect of a written statement is that it can be prepared for the accused inmate. Counsel — whether attorney or jailhouse litigator — can listen to the case, review pertinent documentation, and write the inmate’s statement for them. This is particularly helpful when one considers that many inmates are not apt to be good defensive speakers under pressure.
This written statement, once submitted to a factfinder, then becomes part of the record. This is immensely helpful on appeal since the inmate can then say that all of the evidence was not considered. Often UDCs and DHOs fail to even note the existence of the inmate’s written statement when finding the inmate guilty of alleged misconduct. This is a very strong point to use on appeal. After all, if the UDC or DHO didn’t take into account the inmate’s statement, then the governing principles set forth in the Code of Federal Regulations was not adhered to.
Do Not Cop a Plea
The only time to beg for forgiveness is when the inmate is clearly guilty of the prohibited conduct, and they have been advised to mitigate as opposed to defend by competent counsel. Yes, begging for mercy (essentially apologizing for the charged conduct and promising to not do it again) will most likely result in a reduction in the severity of the sanctions imposed. But it will also make an appeal much more challenging, if not impossible. Admitting to the charged conduct can be the right answer, but it is never the right answer until competent counsel advises that it is the right answer. Until competent counsel says so, the accused inmate should remain silent.
There is no silver bullet against allegations of misconduct. But there is a roadmap that can pave the way to improving the accused inmate’s chances. The suggestions mapped out in this article are the roadmap. By adhering to these tenants, incarcerated clients have a better chance of acquittal and improving their chances on appeal.