While most federal prisoners will one day be charged with misconduct and found guilty (if not on several occasions during their incarceration), few understand the policies and procedures, much less how to defend themselves when confronted with an allegation of misconduct.
The Federal Bureau of Prisons lists many disciplinary code infractions, using four series of scales:
- 100 series: Greatest Severity (e.g., 100 Killing)
- 200 series: High Severity (e.g., 201 Fighting)
- 300 series: Moderate severity (e.g., 300 Indecent Exposure)
- 400 series: Low Severity (e.g., 409 Unauthorized Physical Contact)
When a staff member believes an inmate has committed a prohibited act, they prepare an incident report and forward it to the activities lieutenant for review and issuing to the inmate. This lieutenant then calls the prisoner to the lieutenant’s office, reads them the description of the alleged misconduct listed in the incident report, and asks if they would like to make a statement in their defense.
While we do not recommended making a statement, if you do, and if the infraction is a serious one (e.g. violent or involving alcohol, substances, or escape), then the lieutenant has the option of locking the inmate in the Special Housing Unit pending the outcome of the disciplinary hearings (called “Administrative Detention Status”). For all other less serious offenses, the prisoner will not be placed in the hole, but will remain in general population pending the outcome of the hearings.
Within five work days the inmate will be seen by the Unit Discipline Committee (UDC), which consists of two members of the prisoner’s unit team. While at UDC the prisoner will have a chance to present a statement and any evidence of their innocence. If found guilty, they will be sanctioned to the loss of privileges (e.g., commissary, telephone, email, MP3 player, visitation, etc.) for a specific period of time (e.g., 30, 60, or 90 days).
If the prisoner is charged with a 100 or 200 series incident report, the UDC must decline to hear the incident report and instead forward it to the Discipline Hearing Officer (DHO) for adjudication. Leading up to the DHO hearing, which can take several weeks to occur, the prisoner can request witnesses be called and that they be assigned a staff representative to help them present their defense. The DHO hearing then follows the same protocols as the UDC hearing, with the DHO reading the description of the alleged misconduct, the prisoner presenting a statement and/or evidence, and the DHO making a finding. The only differences between UDC and DHO hearings are that witnesses can be called, a staff representative is present, and the DHO is usually better trained than UDC members.
If found guilty the DHO will impose sanctions, which, while they usually consists of loss of privileges, can also include disciplinary segregation, fines, and loss of good conduct time.
Following an adverse finding at a UDC or DHO hearing, the prisoner has the right to appeal through the administrative remedy program. UDC findings are appealed to the Warden on a BP-9 form, while DHO findings are appealed directly to the applicable regional office on a BP-10 form. If successful the disciplinary finding can be expunged, remanded for rehearing, or remanded for reinvestigation. If the appeal is denied, the inmate has the right to continue the appeal to higher levels of review through the administrative remedy program.
Unfortunately, the chances of receiving an incident report during incarceration are high, especially if you are serving any meaningful amount of time. This is because the Federal Bureau of Prisons’ disciplinary code is broad, and sometimes insignificant actions can result in disciplinary proceedings (e.g., having too many books in your cell, accidentally missing an appointment, etc.).
If you are called to the lieutenant’s office and presented with an incident report we recommend you decline to comment unless there is a rational explanation for the misunderstanding. But be forewarned, anything you say can and will be used against you. The best option is to simply decline to make a statement at that time.
To prepare for a UDC hearing, you should locate a quality jailhouse lawyer at your prison or an external consultant and ask for their help. They will help you prepare a written statement, compile any documentary evidence, and instruct you on how to present each at the hearing. Through their research, and the statement that you present, you will be on the best footing possible. You should prepare for a DHO hearing the same way as with a UDC hearing. The only differences are you should also present a list of witnesses to appear on your behalf and you should also request a staff representative to assist you.
If you are found guilty, you can appeal the ruling on a BP-9 form (the blue one). This is submitted to the institution’s Warden. DHO findings are appealed on a BP-10 form (the yellow one), which are submitted to the applicable regional office. Remember to attach a copy of the completed incident report for UDC appeals and the incident report and DHO report for DHO appeals. If you lose on the first round of appeals, you can follow the chain up (i.e., BP-10 and BP-11).
Your chances of winning the appeal are generally not very good, but this heavily depends on what you said to the investigating lieutenant, how you presented your case while at the UDC or DHO hearing, and how good of a job the reporting officer did when drafting the incident report. With competent counsel, and sometimes some informal advocacy on the part of said counsel, your chances can improve significantly. But keep in mind this is a long and arduous process which often sees you serve all of your sanctions prior to winning on appeal.
If the charged misconduct is of the 300 or 400 variety, the Federal Bureau of Prisons does permit informal resolution of incident reports prior to them being forwarded to the UDC or DHO. You can be assigned extra duty (a certain number of hours of menial work) in place of formal disciplinary proceedings. It never hurts to ask the reporting officer or investigating lieutenant to consider this option.
Contact us for more information on the Inmate Discipline Program or other prisoner resources.