Prison disciplinary work is a staple of my practice.  There will always be someone who has recently received an incident report for violating a prison disciplinary regulation, and many will seek counsel as to how to defend against the proceedings.  Truth be told, I like this sort of work.  It allows me to think outside the box, as sometimes only creative solutions are the ones that work when faced with seemingly insurmountable obstacles (the hearing body is anything but impartial when an inmate is charged with misconduct).  But while I’m always up to the task of defending my clients, I’m not always given a clean slate to mount a defense because of prior admissions by the accused.  Such admissions are the number one barrier to a successful defense against such charges.

Jailhouse litigators and attorneys alike need to make it clear to their incarcerated, or soon-to-be incarcerated clients that admissions of guilt, regardless of the situation, should never be the starting point of any discussion with law enforcement or prison personnel who are investigating allegations of misconduct.  Clients need to get it into their heads that investigators are not their friends, but the people paid to seek “the truth,” which in the prison context is often measured in convictions, not arriving at the right outcome for the facts.

Another simple truth is that criminal investigators and prison misconduct investigators are two very different groups of people.  Investigators outside of prison are thoroughly trained professionals who have years of practice evaluating evidence, locating suspects, and pursuing convictions.  These people must mount an offense by locating evidence, interviewing witnesses, and presenting all of this to an impartial hearing body (a grand jury, trial jury, or judge).

Investigators inside prison, too, are trained, but the bar of excellence is much lower.  The question is not one of justice, but of reaching the desired outcome, i.e., conviction.  Findings of guilt are regularly based upon an officer’s statement, with no actual evidence to support the allegations.  And the hearing body is not a jury of one’s peers — or even of unknown and unbiased people — but of the accuser’s co-workers.  Simply put, the accusing staff member’s statement will be taken into full consideration when the “greater weight of the evidence” (a statement made by an officer, often no other forms of evidence) is used to sustain a finding of guilt.  This means that an officer’s words alone are enough to support a finding of guilt.  This is irrespective of the accused’s personal statement (which is often discounted and ignored).

Regardless of the impartiality of a prison disciplinary hearing body, a concept most call into question, the accused needs to remain silent and understand that once the incident report is issued, they will almost certainly be found guilty of the charge — regardless of what it is — and that they will be sanctioned for the alleged misconduct.  But they also need to understand that there is an appellate process that capable counsel can work wonders with.  But in order for counsel to do so, they need to be able to mount a proper defense, and this usually can’t be done when the client has admitted to part of, or all of, the allegations leveled against them.  Even a statement intended to be mitigating can be, and often is, used to show that the accused has acknowledged engaging in the prohibited act.

The sooner the client understands that admissions and mitigation are both avenues to the upholding of a prison disciplinary conviction, the sooner they will decline to comment and the sooner we — as legal professionals — can seek an acquittal and extirpation of the disciplinary proceedings and sanctions.  This means that our first true task in prison disciplinary proceedings is to convince our clients of this reality.  Maybe then they will decline to make a statement when surrounded by barking investigators trying to intimidate them into confessing to whatever the misconduct at hand might be.

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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