Prison Disciplinary Hearings: Lack of Notice, a Valuable Defense

Prison Disciplinary Hearings: Lack of Notice, a Valuable Defense

The vast majority of inmates incarcerated within the Federal Bureau of Prisons will one day face a disciplinary proceeding.  These proceedings could be the result of a serious allegation of misconduct (e.g., fighting or brewing alcohol) or a less serious allegation (e.g., feeding the birds, or not making a bed).  Regardless of what the alleged misconduct might entail, the inmate needs to research the facts of the case in order to understand if the disciplinary charge is constitutional on its face.

Notice Requirement

In order for an infraction to be legitimate, the inmate must be notified of the existence of the rule or regulation said to have been violated.   Whereas with criminal laws, ignorance is no excuse, this rule does not apply in the prison context.  As noted in A Jailhouse Lawyer’s Manual, by Daniel Manville, “[Y]ou generally cannot be punished for violating a rule that is not published in the prison regulations, nor can you be punished if you have not been issued a copy of the regulations.”

Ideally, every inmate is provided with a comprehensive list of offenses which they could be charged with.  This could be a few pieces of paper, or it could be as in-depth as an Admission and Orientation Handbook (which is required to be updated every few years in the Federal Bureau of Prisons and are to be issued to all new arrivals).

Within the BOP, this right to notice of proscribed conduct is presented in Program Statement 5270.09, Inmate Discipline, which states that staff must give each inmate a copy of the following documents promptly after his/her arrival at an institution:

  • 1) Summary of the Inmate Discipline Program (Appendix B of program statement);
  • 2) Inmate Rights and Responsibilities (Appendix C of program statement); and
  • 3) Prohibited Acts and Available Sanctions (Table 1 of the program statement).

The section continues, “Receipt of these documents must be noted on the intake screening form and maintained in the inmate’s central file.  The receipt is kept in the inmate’s central file.” Id. Thus, there is a record of when the inmate was issued notice of the applicable disciplinary policy which contains a list of the prohibited acts.

Since this is a systemized process, all federal inmates should be provided notice of existing disciplinary infractions.  If, by chance, the inmate does not receive some form of notice prior to being charged with misconduct, they have a strong case for dismissal of the charges.

Federal Bureau of Prisons Disciplinary Policy

Federal Bureau of Prisons Program Statement 5270.09 (Inmate Discipline Program) lists all of the possible disciplinary code violations and applicable sanctions in Table 1.
If an inmate is charged with a violation of BOP disciplinary policy, they should ensure that the charge is actually listed in the Inmate Discipline Program Statement (PS 5270.09) and that the alleged conduct actually comports with the charge.  Often staff will charge an inmate with a more severe code infraction than is warranted.  By the inmate reading through all of the possible code violations, he or she may discover that the circumstances of the incident or the code violation applied thereto are inappropriate.  Thus, a reduction in code severity and mitigation of potential sanctions could be warranted.

It is good practice to always challenge the procedures used when the BOP issues a new disciplinary policy and has not provided proof that the inmate has been notified about the new policy.  For example, inmates incarcerated before July 8, 2011, were admitted to the BOP prior to the latest disciplinary policy update.  Thus, when they signed their Inmate Screening Form at their Admission and Orientation meeting, they were acknowledging the prior disciplinary policy, not the current one.  One of the reasons that this can be important is that a number of charges either didn’t exist or were less severe in the prior disciplinary program statement.  Thus, arguments can easily be made for reducing a charged code violation, or for throwing the code violation out entirely, since the notice was never formally provided.  Here are several of the revisions which were made to the most recent disciplinary policy:

  • Greatest and High severity levels were created for sexual assault (codes 114 and 229).
  • Creation of Code 115 for destroying and/or disposing of any item during a search or attempted search.
  • Clarifying possession of a cell phone or other electronic communications device as a Greatest severity prohibited act (code 108).
  • Creation of a High severity level prohibited act for possession of stolen property (code 226).
  • Increasing the severity level for tattooing from code 405 to code 228.
  • Increasing the severity level for conducting business from code 408 to code 334.
  • Creation of Greatest, High, and Moderate severity level prohibited acts for abuse of the mail (codes 196, 296, and 396).

Refusing to Obey a Direct Order

Refusing to obey a direct order is a Code 307 disciplinary violation.  The parameters of this charge of misconduct can generally be considered as follows: 1) the officer clearly gave notice to the inmate to either engage or not engage in some act and 2) the inmate did not obey the officer’s order.  This could also be the case if the officer had previously issued the direct order and, after a period, the inmate didn’t abide by it.

If an inmate is charged with this kind of misconduct, they must weigh the situation.  For example, did the officer give the inmate a lawful order?  Was the officer clear in communicating the order?  Was the inmate confused by the order?  Was the officer engaged in misconduct while issuing the order?  All of these can turn into portions of a written defense to an incident report and can be useful on appeal.  If an argument can be made for the officer not conveying the order clearly and in an understandable manner, a lack of notice could be an affirmative defense.

Camera evidence can be particularly helpful in these situations since it could show the officer walking away from the inmate while issuing the order.  It could also show that others were yelling at TVs within the vicinity.  Thus, there would be no way for the inmate to hear the officer over the other inmates.  In situations like this, it would have been up to the officer to convey the message appropriately and to keep a unit or TV area quiet enough so that a direct order could be conveyed.

Other Forms of Notices

Bulletin boards are a common area for notice to be provided.  Many housing units within the Federal Bureau of Prisons have a list of housing unit regulations that are supposed to be followed.  Often, correctional counselors will use these posted notices as the notice required for refusing to obey a direct order incident report (code 307), failure to follow safety or sanitation regulations incident report (code 317), or a being unsanitary or untidy incident report (code 330).  They might also post other memorandums in communal areas (e.g., no feeding of the wildlife around the prison).

If an inmate is charged with misconduct which is supported by posted notices, the inmate should review the disciplinary policy and other applicable policies (e.g., the inmate personal property program statement) to determine if the rule is based upon stated BOP policy or federal regulations.  If it is not, or if the case law is in disagreement with the stated rule, this could be a great defense/appellate point to present.

One case which is helpful to present is that of Taylor v. Perini, 413 F. Supp. 189, 233-34 (N.D. Ohio 1976), which states that prison officials can’t punish inmates for violating vague regulations.  Taylor also states that inmates can’t be punished for violating a temporary posting on a bulletin board (if a posting is a permanent one, then such a defense is not useful).  But if it is temporary, and especially if it is not grounded in disciplinary policy, it can’t be used to sanction an inmate.

Investigation of the seemingly insignificant can often present strong defenses to seemingly substantial allegations of misconduct.  Just because an allegation of misconduct looks right or sounds right on its face, it doesn’t mean that it is, in fact, legally sound.

What to Do If Notice Was Not Issued

If the inmate finds themselves in a position where an argument for lack of notice is possible, they need to be vocal in asserting it.  This means presenting this fact to the lieutenant when being issued the incident report, doing so when in front of the Unit Discipline Committee (UDC), and asserting the point before the Discipline Hearing Officer (DHO), if applicable.  This argument should be presented in the inmate’s written statement to the applicable hearing body and should be utilized on appeal (please see our article entitled “The Defense Packet” for more information as to this practice).

By slipping quietly into a finding of guilt, inmates only harm themselves.  By appealing every finding of guilt to the greatest extent possible, the prison population keeps the Federal Bureau of Prisons honest and ensures that their rights are not being violated.  This, in itself, is worth the fight.