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Author: Gary

Title/Position: Director of Jail Operations, Utah Sheriffs' Association

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Prisoner Discipline - Part 1: The Foundation for an Effective Discipline System

Part I: The Foundation for an Effective Discipline System
by Gary W. DeLand

Editor's Note: This article is the first in a series discussing prisoner discipline. Part I, below, will provide hearing officers and other corrections officials with an overview of prisoner discipline and the basic principles for establishing the foundation for an effective and constitutional system for administering prisoner discipline.

Prisoner discipline is a critical component of prisoner management. In any environment in which accused and convicted persons are incarcerated against their will, it will be necessary to have the means to enforce compliance with rules and regulations. The prison¬er discipline process pits the due process interests, or in some cases desires, of prisoners against corrections officials' penological interests, including safety, security, order, and discipline. Prisoners facing disciplinary charges want the full panoply of rights ordinarily available in defending criminal charges, or at the very least those due process rights afforded to probationers and parolees at revocation hearings. On the other hand, corrections officials want to be free to impose discipline swiftly and surely to have an immediate and maximum effect on prisoner conduct. Line officers expect the disciplinary system to support their efforts to control and manage prisoners, many of whom are reluctant to willingly submit to authority.

Competing Interests in Determining Due Process Requirements
Prisoners understandably would prefer to have limitless due process; to have every possible advantage in their interaction with corrections officials. Prisoners may believe that the Due Process Clause entitles them to representation by counsel, strict procedural requirements at hearings, cross-examination of adverse witnesses, and other procedural protections. However, requiring officials to provide prisoners with due process on par with that afforded defendants in criminal trials or civil litigation would result in a burdensome and unwieldy system that would hamstring officials in trying to effectively manage prisoners and meet their legitimate penological interests of safety, security, order and discipline.

Corrections officers also have legitimate interests in receiving reasonable support from the prisoner disciplinary system to provide sanctions, when appropriate, to help control prisoner misconduct. They also need a system unencumbered by burdensome, time-consuming procedural requirements, which undermine the ability of line officers to effectively manage and control prisoners. They need a disciplinary system which ensures that the due process provided to prisoners at a disciplinary hearing is compatible with the needs of prison security, safety and order, Line officers must manage prisoners on a face-to-face, minute-by-¬minute basis; and thus have a need for effective support from the disciplinary process to reinforce in the minds of prisoners that there are predictable and significant consequences for engaging in misconduct.

Jails and prisons incarcerate persons who have been accused, and convicted, of violating criminal law, and include among their numbers many of society's most violent, dangerous, manipulative, intimidating, and unpredictable members. It should come as no surprise that corrections officials must have the means to enforce policies, regulations, and rules, and to control prisoners' behavior and conduct. Although it is important to have positive incentives for prisoners to subordinate themselves to jail rules, it is critical to the safe, secure, and orderly operation of corrections facilities to have the means to coerce compliance with rules and regulations when such compliance is not voluntarily given.

Jail officials additionally have legitimate penological interests in providing a viable prisoner discipline system. The purposes of prisoner discipline include enforcing prisoners' compliance with policies, rules, and regulations; ensuring that prisoners exercise proper discipline and restraint in their actions while incarcerated; and protecting the safety of prisoners, staff, and others. (Walpole v. Hill, 472 U.S. 445,455 (1985).)

Balancing Competing Interests
The Supreme Court has weighed these competing interests in its decisions concerning discipline due process. The Court recognized the difficulty of handling prisoners who have not distinguished them¬selves with a love for and adherence to laws and regulations. The Court has thus acknowledged the need for a flexible, swift, sure, and effective system of discipline which can be administered, unfettered by burdensome procedural requirements. "It is against this background that disciplinary proceedings must be structured by prison authorities; and it is against this background that we must make our constitutional judgments." (Wolff V. McDonnell, 418 U.S. 539, 562 (1974).) While the Court has demonstrated a strong interest in protecting administrative discretion and disciplinary procedures which are not overly procedural, it does not allow serious or grievous punishments (i.e., loss of good time) to be "imposed arbitrarily." (Walpole, 472 U.S. at 454; Wolff, 418 U.S. 539 at 561.) Minimal due process is required when the potential outcome of a disciplinary action would impose an "atypical and significant hard¬ship on the inmate in relation to the ordinary incidents of prison life." (Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995).)

Even when due process is required, how¬ever, the level of due process is substantially below that of criminal or civil proceedings. "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." (Wolff, 418 U.S. at 556.) The Supreme Court has determined that, while providing due process to prisoners, corrections officials need not employ "burdensome administrative requirements that might be susceptible to manipulation." (Wolff, 418 U.S. at 562-63; Walpole, 472 U.S. at 454; Baxter v. Palmigiano, 425 U.S. 308, 321-22 (1976).) While disciplinary hearings should not be mini-trials, they should provide prisoners a reasonable opportunity to refute allegations in an informal hearing. The Court also recognized the need to avoid an overly adversarial, procedure-laden process, and recognized that “it may be essential to ensure that discipline be swift and sure." (Wolff, 418 U.S. at 563; Walpole, 472 U.S. at 456.)

Unique Environment for Prisoner Due Process.
Due process for prisoners must serve its purposes in a unique environment. It does not function in the free world where the vast majority of persons are law abiding. To the contrary, prisoner "disciplinary proceedings…take place in a closed, tightly controlled environment populated by those who have chosen to violate the law and who have been lawfully incarcerated for doing so." (Wolff, 418 U.S. at 561.) Staff and prisoners ‘‘co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace. Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.” (Wolff, 418 U.S. at 562.) As a result, managing prisoners in a safe, secure, and orderly manner demands a means of controlling behavior and deterring misconduct.

Basic Purpose of Prisoner Discipline.
In balancing the competing interests, it is critical to ensure that the basic purpose of prisoner discipline is met. The purpose of prisoner discipline is to enforce compliance with regulations governing prisoner conduct to further legitimate penological interests, including, but not limited to the following:

  1. Protecting the safety of staff, prisoners, and others. Prisoners incarcerated in a jail or prison which lacks proper discipline are at substantial risk from prisoner-on-prisoner violence and other threats related to reduced order and control of prisoners.
  2. Safeguarding facility security. Poor discipline degrades institutional security and increases the incidents of introduction and trafficking of contraband by prisoners and a greater potential for escape and other security-related problems.
  3. Maintaining order. Neither safety nor security can be maintained in a facility which operates in an environment of disorder, confusion, or disruption. Maintaining proper order helps improve confidence arid create a more comfortable environment which, in turn, reduce tension and anxiety among prisoners and staff.
  4. Ensuring discipline. In jails and prisons, staff members are substantially out¬numbered by prisoners. Thus, it is extremely important that prisoners exercise personal discipline, temperance in their interactions with others, and compliance with regulations, orders and instructions from staff. There is a direct cause-and-effect relationship between the effectiveness of discipline and the level of difficulty in managing prisoners and protecting safety and security.

Fair and Equitable Discipline.
Prisoner discipline is a process which utilizes punitive actions as a means of enforcing administrative rules and regulations governing prisoner behavior. To be effective, the prisoner discipline system should be developed with a clear mission to provide an equitable system for enforcing prisoner compliance with jail rules and regulations. The elements of a fair and effective system need to be identified to formalize effective policies and procedures for prisoner discipline. The first step necessary to establish a fair and effective system of due process is ensuring that prisoner discipline policies and procedures meet constitutional and other requirements of law. The second step is ensuring that punishments and penalties meted out to prisoners are fair and commensurate with the level of misconduct and the prisoner's disciplinary history. It is also important to remember that prisoner discipline is not just a system of negative sanctions or punishments. The punitive aspects of the system alone cannot provide effective control of prisoners. An effective discipline system combines rewards or other incentives for proper conduct in addition to the punitive penalties for misconduct.

Failure to ensure fairness and positive incentives and reinforcement will result in greater resistance to the discipline system and greater incentive to commit mischief. Maintaining proper prisoner discipline and cooperation requires much more energy and effort if the prisoners themselves do not accept the process to some extent. It may be more of a practical than a legal issue, but if prisoners perceive a sense of fairness in the system, their level of compliance is ordinarily higher. By the same token, if prisoners see evidence that the system is arbitrary, inequitable, or dishonest, compliance will be withheld or grudgingly given. Corrections officers have a very difficult job, even on good days; however, if prisoners have no incentive to cooperate they can make each officer's tour of duty much more difficult and demanding. Remember, "prison rules regulate inmate conduct to assure orderly operation of the institution and to protect inmates and staff. Codes of conduct and their associated rewards and penalties help to manage confined populations that outnumber staff three to one." (James Stephan, "Prison Rule Violators," Bur. of Just. Stats. Special Rep, 1 (Dec. 1989).)

Prisoners Are Entitled to Fair Notice
A key element to fair and reasonable discipline is fair notice. Fair notice simply means prisoners are informed of the institution rules. It is not fair and equitable and, in many cases, may be unconstitutional to punish prisoners for misconduct if the prisoner was never given fair notice of the rules and regulations regulating his conduct. Written rules and regulations are important to providing the notice necessary to ensure that the disciplinary process is equitable and as a means of providing warning to prisoners of required or prohibited conduct; thus making it possible to avoid inadvertent misconduct.

While some conduct is so obviously improper that it would be difficult for a prisoner to argue he did not know it was prohibited, even if it was not prohibited in writing (e.g., spitting in an officer's face), not all requirements may be so clear. Prisoners should be informed in advance of conduct, which may result in disciplinary punishment. (Reeves v. Pettcox, 19 F.3d 1060 (5th Cir. 1994).) Prisoners should not be punished for conduct of an innocuous or trivial nature under vague and uncertain standards and regulations. Rules which are vague may unconstitutionally deny a prisoner fair notice. (Rios v. Lane, 812 F.2d 1032 (7th Cir. 1987); Collins v. Schoonfield, 344 F.Supp. 257 (D.Md. 1974). On the other hand, if a rule is written in a reasonably clear manner, it should be legally adequate. (Nicholas v. Tucker, 89 F.Supp.2d 475 (S.D.N.Y.2000).) Additional benefits of prisoner rules and regulations include providing specific language against which to evaluate alleged prisoner misconduct, thus focusing the issues for both prisoners and staff, and specifying rule numbers to aid in listing, identifying, and quantifying disciplinary actions.

Disciplinary Actions Are Punitive.
Prisoner discipline is a management system, which uses punitive sanctions to enforce compliance with rules and to control prisoner misconduct. It is the punitive nature of the sanctions, particularly if serious, which may trigger the need for due process. (Wolff, 418 U.S. 539); Baxter, 524 U.S. 308; Sandin, 115 U.S. at 2301.) Where the intent of the action is punitive and the potential sanctions are grievous or serious, due process is ordinarily required. (Wolff, 418 U.S. 539; Baxter, 425 U.S. 308; Duran v. DeLand, 87-C-112 W (C.D. Utah 1990), citing Hewitt v. Helms. 459 U.S. 460 (1983).)

Exceptions to Due Process Requirement.
Not all changes in conditions of confinement that may have a substantial adverse impact on the prisoner require due process. (Meachum v. Fano, 427 US. 215, 224-25 (1976); Levoy v. Mills. 788 F.2d 1437, 1440 (10th Cir. 1986).) For example:

  • In Meacham v. Fano, the Supreme Court ruled, "[T]o hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." (427 U.S. at 225.)
  • In Sandin v. Connor, the Supreme Court ruled that a liberty interest requiring due process may be created if the disciplinary punishment "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." (115 U.S. at 2300-01.)
  • In Hewitt v. Helm, the Supreme Court ruled, "it is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." (459 U.S. at 468.)

A related component of the prisoner management system, classification, may also result in prisoners suffering a substantial adverse change in conditions of confinement, but for non-punitive management purposes. The differences between the purposes and procedures for classification and discipline should be clearly articulated in written policies and procedures. Inadequately defined policy and procedure directives may unintentionally trigger due process requirements for management decisions not ordinarily requiring them. "Absent an intent to punish… a prisoner has no right to due process in connection with a change in the restrictiveness of his confinement." (Duran, 87-C-112 W (C.D. Utah 1990), citing Hewitt. 459 U.S. 460 (1983).) Due process is not required unless the intent of the action is punitive and the potential sanctions result in an "atypical" departure from the original sentence.

Limits of Required Due Process
It is not uncommon for hearing officers to become caught up in technical, procedural requirements of discipline hearings and lose sight of the intended purposes of prisoner discipline. When this happens, it can result in unreasonably rigid interpretations of due process requirements. As a result, prisoners may escape accountability for their misconduct as a result of harmless and inadvertent negligence or errors by staff, and corrections staff lose confidence in the disciplinary process and hearing officers. It is important for hearing officers and other officials involved in the disciplinary process to remember that the discipline system is not intended to provide the same degree of due process as that available at a criminal trial. Prisoner discipline systems which are overly procedural, adversarial, and rigid will be less effective in ensuring prisoner compliance with facility rules; safeguarding facility security, protecting the safety of staff, prisoners, and others; and maintaining or restoring order and discipline in the jail.

The Supreme Court has acknowledged the importance of protecting legitimate penological interests by limiting the amount of due process afforded to prisoners in jails and prisons. "[This] court has recognized the legitimate institutional needs of assuring the safety of inmates and prisoners, avoiding burdensome administrative requirements that might be susceptible to manipulation and preserving the disciplinary process." (Walpole, 472 U.S. at 454-55; see also, Ponte v. Real, 471 U.S. 491 (1985); Baxter, 425 U.S. at 321-22; Wolff, 418 U.S. at 562-63.) "We have often repeated that '[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’” (Wolff, 418 U.S. at 560, quoting, Cafeteria & Restaurant Workers v. McElroy, 367 U.S., 886, 895 (1961).) The Supreme Court has acknowledged that there is a big difference between procedures in corrections facilities and those in a free society. "[O]ne cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison." (Wolff, 418 U.S. at 560.) "The requirements of due process are flexible and depend on a balancing of interests affected." (Walpole, 472 U.S. at 454.)

Hearing officers should not engage in the technical or legal hair-splitting common in the judicial system. Staff have a very difficult job enforcing rules and controlling prisoners' behavior. That job becomes much more difficult without a reasonable system for punishing prisoners' misbehavior and providing incentives for compliance with rules. A practical, commonsense approach will facilitate, rather than burden staff in meeting their prisoner supervision duties and responsibilities.

To ensure consistent, uniform, and fair prisoner discipline, basic management principles require that written policies and procedures be adopted to govern discipline reporting, review, due process, appeals, and sanctions. Staff should have a working knowledge of prisoner discipline policies and procedures and have written policies and procedures available for reference when needed. Staff should also receive training and periodic testing regarding prisoner discipline procedures.


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