This article describes seven steps to a successful prison disciplinary outcome. By following these seven steps, which I regularly advise my incarcerated clients of through prisonlawblog.com, inmates can give themselves the best chance of a positive outcome when faced with accusations of disciplinary infractions.
Step One: Remain Silent
When issued an incident report, prisoners should remain silent. Quiet. There is no mitigation to be had. Any admission will just be used as additional incriminating evidence, which will then be reported – correctly or not – as being an admission of guilt. At this stage in the game, everything becomes an uphill battle since the record will reflect that the inmate admitted to the charges. By remaining silent, inmates accused of violating prison codes of conduct can greatly improve their chances of successfully defending themselves against allegations of misconduct.
Step Two: Present Documentary Evidence
In the Federal Bureau of Prisons, inmates accused of misconduct have the right to present documentary evidence on their behalf. They should, and assertively so. Anything that can be used to challenge the official account of wrongdoing should be presented. This could consist of security camera recordings, telephone recordings, guard log books, a commissary receipt, property logs, letters, official memoranda, or any other shred of evidence that can cast doubt as to the incident report’s validity.
Step Three: Request a Staff Representative
If a federal inmate is charged with a High Severity Prohibited Act (200 series code violation) or a Greatest Severity Prohibited Act (100 series code violation), he or she will first attend a hearing with the Unit Disciplinary Committee, who will then make a sanction recommendation (if the inmate is to be found guilty as charged), and refer the incident report to the Disciplinary Hearing Officer for adjudication at a separate disciplinary hearing. In such a case, the inmate will be allowed to request a staff representative – a prison staff member who can help explain the charges, review evidence that can’t be disclosed to the inmate (e.g., confidential informants’ statements, security camera recordings, telephone call recordings, etc.), and, if a good staff representative is selected (the inmate has an option to select a specific staff representative), assert the accused inmate’s rights more forcefully than the inmate possibly could.
A tip I’ve shared at prisoneducation.com is to select a staff representative who is an amenable lieutenant. Since they are used to the disciplinary process (they do issue the incident reports and take the inmate’s initial statement, after all) and have a certain amount of power in the Federal Bureau of Prisons’ authority hierarchy, they can be a strong asset, if they are willing, that is.
Step Four: Call Favorable Witnesses
Witnesses should be called. While only one or two character witnesses will be allowed by a Unit Disciplinary Committee or Disciplinary Hearing Officer, as many fellow prisoners who wish to speak have the right to as long as they have eyewitness testimony to offer. This is an asset to an inmate charged with misconduct, who should compile a list of witnesses, both in prison and outside of prison, who can contribute favorable testimony. This could either be in person, or, better yet, in the form of written affidavits. All of this helps the inmate to create a record from which to appeal an adverse disciplinary finding. Since the vast majority of inmates are found guilty when charged with misconduct – after all, the hearing officers are co-workers of the reporting officer – the first true chance at a fair hearing is on appeal to either the applicable regional office or even the central office.
Step Five: Issue a Written Statement
Inmates in the Federal Bureau of Prisons have the right to make a statement on their own behalf. This is both a gift and a curse. Since prison disciplinary hearings are not recorded or transcribed, when the inmate makes a verbal statement, it is up to the Unit Disciplinary Committee (UDC) or Disciplinary Hearing Officer to make a brief note of what the inmate said. At the UDC level, this consists of two lines for the UDC member to jot down the inmate’s statement. As with making a statement to the lieutenant who issues the incident report, the prisoner’s comments will most likely be taken out of context and used to sustain a finding of guilt.
Instead of making a verbal statement, inmates should always opt to make a written statement. Ideally, it should be typed beforehand by someone who understands Federal Bureau of Prisons’ policy and has a firm grasp of such matters. This typed statement should be one to three pages long, clearly present the inmate’s arguments, and note all forms of evidence (documentary, witnesses requested, etc.). This is the cornerstone of the record from which the inmate will need to appeal if found guilty by the prison disciplinary body, which almost all inmates are. A copy of this written statement should be saved for appellate purposes.
Step Six: Acknowledge No Culpability
There are many points throughout the process of being investigated, charged, and adjudicated for prison disciplinary infractions when the accused inmate will have direct contact with prison personnel involved in the adjudication of the alleged misconduct. There are the reporting officer who becomes aware of the violation of the disciplinary policy; unit team members or line prison guards who hear of it and mention it to the inmate; the lieutenant who issues the incident report; any person who could become a witness (either for the defense or the prison administration); the Unit Disciplinary Committee members; the Disciplinary Hearing Officer; and anyone called, emailed, or written. There are lots of missteps that can be made, all of them devastating to an effective prison disciplinary defense.
Upon becoming aware of being investigated for prison misconduct, the inmate should stop speaking about it to everyone except his or her defense team. This is a categorical rule. There are just too many points at which additional, damning evidence can be introduced which can harm the inmate’s chances of acquittal.
On a related note, when the inmate is making a statement to the prison disciplinary hearing body, half measures should never be taken. Any admission of guilt or culpability is a complete admission of guilt. In the Federal Bureau of Prisons, merely attempting to commit misconduct is just as bad as committing the misconduct itself. For example, conducting a business is a 334 code violation. Attempting to conduct a business is a 399 violation. Both are 300 series incident reports and thus carry the same potential sanctions. Long story short, statements should be all or nothing. Hedging one’s bets is a sure way of being found guilty of prison misconduct and closing the book on any appeals.
Step Seven: If An Adverse Finding Is Enforced, Appeal
It’s a sad fact that a prisoner charged with inmate misconduct is judged by the reporting officer’s co-workers. This could be the reporting officer’s direct supervisor or underling. As such, it’s no wonder almost all inmates charged with misconduct are found guilty. This means that the deck is stacked against the accused inmate from the start. This is merely the way it is in the Federal Bureau of Prisons, and it doesn’t look like it’s going to change anytime soon. As soon as the inmate comes to terms with the probable finding of guilt, the sooner he or she can prepare for the real fight: the appeal.
Through the Federal Bureau of Prisons’ Administrative Remedy Program, federal prisoners can appeal adverse disciplinary findings. This appeal should be conducted each and every time a prisoner is found guilty of misconduct. Period. Since this is the first true opportunity to defend against the charges (or even merely mitigate sanctions for an act actually committed), the prisoner must have put in the legwork leading up to this point. The legwork of remaining silent, presenting documentary evidence, requesting a staff representative, calling witnesses, issuing a written statement, and admitting no culpability is thus essential. By engaging in these steps, the inmate will create a record from which to appeal, and, hopefully, from which justice will be served.