By Christopher Zoukis

Prisoners incarcerated in both federal and state correctional systems are subject to prison disciplinary codes of conduct through which they can be sanctioned for committing disciplinary code violations.  Often these disciplinary processes are nothing more than a proverbial kangaroo court.  The prisoner is charged with misconduct, issued an incident report (sometimes called a “Disciplinary Report” or informally known as a “Ticket” or a “Shot”), brought before a hearing body consisting of the reporting officer’s peers, found guilty of the alleged prison disciplinary code violation(s), and sanctioned for the alleged conduct.  Sadly, this is not an exaggeration as the process truly is this simple, straightforward and unfortunate.  There are no true judges and juries present, only a colleague or two of the reporting officers who make the guilty/not guilty determination.

With the understanding that almost every prisoner who is charged with disciplinary misconduct will be found guilty of the alleged disciplinary code violation, it is vital for prisoners to know what to do when such issues arise.  They must know what steps to take before even being issued the incident report for the alleged disciplinary code violation and how to intelligently proceed through the various hearings and stages in the disciplinary process.  This article strives to provide a crash course in what to do when faced with a prison disciplinary proceeding and how to slant the odds in the accused’s favor.  The United States Supreme Court has ruled that prisoners have a Due Process Clause right to a fair tribunal of disciplinary matters, vesting them with certain rights, including the right to written notice of a hearing, the right to an impartial tribunal, the right to present evidence, and a written statement of the evidence and findings made at the hearing.  Each prisoner should be aware of these rights and should exercise them whenever they are facing such misconduct allegations.

Tip One: Remain Silent When Charged With Inmate Misconduct

The most important rule of thumb when faced with a prison disciplinary proceeding is to remain silent.  As with traditional law enforcement, prison guards investigating inmate misconduct are not the prisoner’s friends.  They are not there to search for the truth.  They are not impartial fact finders: their job is simply to gather evidence for a conviction of the alleged misconduct.  The best way to handle such prison guards is to remain silent or to only point out facts which support an acquittal.  Most prisoners acknowledge some amount of guilt when speaking with such prison investigators and really hurt their chances at a favorable outcome by doing so.  By remaining silent, this potentially crippling problem can be sidestepped in its entirety.  A mere “I wish to remain silent,” “I have nothing to say at this point in time,” or “I reserve the right to remain silent” is all that needs to be said when confronted with prison disciplinary proceedings.

Tip Two: Do Not Acknowledge Any Alleged or Actual Misconduct

Mitigation is almost categorically not the answer in prison disciplinary proceedings, it is only an additional nail in the prison disciplinary coffin.  For some unknown reason, many prisoners seem to forget the whole process of being arrested, interrogated, and thrown into a county jail.  The process of being charged with prison misconduct should be thought of as the same.  Whereas a detainee would not admit to a law enforcement officer that they engaged in the crime in question — or only a small portion of it — prisoners should not admit to prison disciplinary investigators that they have done ANYTHING wrong.  Time and time again, a prisoner makes an off-handed comment intended to mitigate the situation, only to seal his or her fate by doing so.  By making admissions, the “some evidence” test used to review disciplinary findings is easily met, and prison disciplinary hearing bodies have more evidence upon which to sustain an adverse finding.  By continuing to deny any and all misconduct allegations, the prisoner will have a chance at reversal or expungement on appeal, where an official not connected to the reporting officer will review the proceedings and evidence to determine if the guilty finding should be upheld or not.

Tip Three: Request Applicable Witnesses and a Staff Representative

Image courtesy prisonlawblog.com

Often prisoners feel as though they can do nothing to defend themselves once an incident report has been issued.  While this is mostly correct, it is not the whole story.  As indicated above, prisoners are accorded several important due process rights that can provide at least some measure of fairness in the process.  During the early stages, though, the goal of the prisoner accused of engaging in misconduct is to build a record from which to appeal.  The first step in doing so is to call numerous witnesses.  The Supreme Court has confirmed the prisoner’s right to call witnesses at a disciplinary hearing.  Such witnesses could be both staff and fellow prisoners.  The key is to call witnesses who are supportive of the defense’s position and can corroborate different components of the accused prisoner’s defensive position (which will be detailed in the written statement discussed below).  While a disciplinary hearing body will not allow endless character witnesses or a number of witnesses who are all expected to present virtually the exact same testimony, any number of witnesses are allowed under most policies, provided that they have relevant, non-cumulative evidence to present.  The accused prisoner should also keep in mind that written witness statements can be made by those outside of prison too.  But more importantly, by a prison disciplinary hearing body official not allowing all of the witnesses to testify, they have violated the accused prisoner’s due process rights.  And this could cause an adverse disciplinary finding to be overturned on appeal.

Tip Four: Present Documentary Evidence

Prisoners also have a constitutional right to present favorable evidence on their behalf.  If favorable evidence is available, the accused prisoner should present it or request it be presented (in the case of camera recordings or other official recordings or documentation).  Documentary evidence could include a letter mailed to the prisoner, any document, video camera recordings, official logbooks, recordings of guards’ radio traffic, recordings of telephone calls, or any other number of tangible items or recordings.  Virtually anything in fixed form can be relied on as evidence.  As long as the evidence disputes or presents plausible deniability of the description contained in the incident report, it can be of use.  Creativity is the name of the game here.  Prisoners should think outside the box and prepare as well as they can.  Prison disciplinary hearings should be thought of as college exams in which success or failure depends on preparation, not an interview in which the accused only needs to answer direct questions from a disciplinary hearing officer (whose job is to find rule breakers guilty and sanction them accordingly).

Tip Five: Do Not Waive Rights to Witnesses to be Present or Evidence to be Gathered

Prison disciplinary hearing bodies are notorious for convincing accused prisoners to waive their rights.  This could be the waiving of the right to a staff representative, witness testimony, time limits, or even the collection and review of documentary evidence.  Often this is presented as expedient due to difficulty in obtaining evidence, with a wink and a hint by the hearing officer that they will go lighter on the accused prisoner or that they will concede that the evidence might have supported the prisoner’s standpoint if the prisoner will waive a right.  Prisoners should not be fooled by this absurd and often abusive rhetoric.  Prisoners should always assert their right to all of the evidence being reviewed prior to a decision being made by the fact finder.  There are no “ifs,” “ands,” or “buts” about this.  If the evidence is not reviewed, it does not become a part of the prison disciplinary record.  And the record is what matters here since it is on appeal that talented jailhouse litigators and attorneys can have adverse disciplinary findings overturned.

Tip Six: Prepare and Submit a Written Statement to the Disciplinary Hearing Body

All inmates accused of engaging in misconduct have the right to make a statement to the prison disciplinary hearing body adjudicating the case.  This is a categorical right regardless of what type of misconduct the prisoner is charged with or what prison system they are incarcerated within.  While many prisoners make verbal statements to disciplinary hearing bodies, this is often to their detriment since disciplinary hearing officers tend to misquote the prisoner making the statement or, more likely, take a portion of the statement out of context so that it can support a finding of guilt.  As such, a written statement is a must.  This statement should intelligently present the defense’s side, call to attention evidence and witnesses requested and presented, and be as professional as possible (if possible, it should be typed and limited to one or two pages).  Not only will a written statement ensure that the prisoner is not misquoted or quoted out of context, but it will ensure that the most developed argument is presented and that the reasoned and intelligent argument becomes a part of the disciplinary record from which to appeal (if required).  If a written statement is not employed, it then becomes a matter of he-said-she-said when arguing that specific aspects, arguments, witnesses’ testimony, or evidence were presented to the disciplinary hearing body to consider.  But with a written statement, a concrete record of the statement is preserved for appellate reasons. 

Tip Seven: Appeal Any and All Adverse Prison Disciplinary Findings

Categorically, adverse prison disciplinary findings should be appealed.  This is regardless of what the alleged misconduct was, the charge found guilty of, the sanctions imposed, or any other component of the prison disciplinary action.  All adverse prison disciplinary findings should be appealed by competent counsel.  This is the first real chance any prisoner has of having a thorough review of the alleged inmate misconduct.  It is highly recommended that prisoners found guilty of prison misconduct speak with an established, reputable, and talented prison litigator in their prison’s law library or retain the counsel of an attorney or prison consultant experienced in appealing adverse prison disciplinary findings.  Regardless of what route is taken, the prisoner should select competent counsel based on referrals and an established track record of success.  While an attorney might charge several thousand dollars to appeal such adverse prison disciplinary findings, established prison consultants might only charge a few hundred to a thousand dollars, and a talented jailhouse litigator might charge a negotiable fee to handle all applicable appeals.  This cost is well worth it since it substantially increases the chance of a successful appellate outcome.

_____

Editorial Note: The Prison Law Blog can provide referrals to competent attorneys and prison consultants who handle prison disciplinary preparation and appeals, if such services are desired.  Send an email and we will provide a referral based upon your unique circumstances.  Note that the Prison Law Blog does not give legal advice or directly assist other prisoners with legal or administrative matters, and receives no referral bonuses or remuneration of any kind for any such recommendations.

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).

Leave a Comment