By Tate McCotter, NIJO Executive Director
“Why don’t you try to make me?”
“No, I am not going to do that, not now, not ever.”
An officer command is met with silence, an expletive or physical response…
This laundry list of negative inmate responses to disobey regulations and officer commands are well known and rehearsed to every correctional officer. One of the chief cornerstones required for effective inmate management is inmate discipline. Because inmates are persons who are convicted of or accused of violations of criminal law, it is obviously necessary to have punishment as an available option to encourage or coerce inmates to comply with inmate rules and regulations that might not otherwise be followed.
In August 1987, a Hawaiian prison officer escorted inmate DeMont Conner from his cell to a module program area. Following a strip search, Conner retorted with angry and foul language directed at the officer. Eleven days later he received notice that he had been charged with disciplinary infractions. The notice charged Conner with “high misconduct” for using physical interference to impair a correctional function, and “low moderate misconduct” for using abusive or obscene language and for harassing employees.1 Among many other issues, Conner filed a lawsuit for being placed in solitary confinement for 30 days, challenging procedural due process that took place in the disciplinary hearing. The lawsuit made its way through the 9th Circuit and eventually to the Supreme Court. In this case, the Supreme Court explained the aims of punishment of incarcerated prisoners as follows:
The (disciplinary) process effectuates prison management and prisoner rehabilitative goals. Admittedly, prisoners do not shed all constitutional rights at the prison gate, but” ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.”’ Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law.
The necessary withdrawal of limitations of privileges of rights is constantly being challenged by inmates in the court with claims on so-called “rights” revolving around the inmate disciplinary process. Because the circumstances of misconduct are so individualized, the Sandin v Conner court explained the need for correctional administrators to codify management procedures in the interest of uniform treatment. Consider the following as it relates to the disciplinary policies and general process:
Prison administrators need be concerned with the safety of the staff and inmate population. Ensuring that welfare often leads prison administrators to curb the discretion of staff on the front line who daily encounter prisoners hostile to the authoritarian structure of the prison environment. Such guidelines are not set forth solely to benefit the prisoner. They also aspire to instruct subordinate employees how to exercise discretion vested by the State in the warden, and to confine the authority of prison personnel in order to avoid widely different treatment of similar incidents.
This court ruling effectively ended the “less policy is better because they can’t use it against us if we don’t have it written down” argument. In recognizing that policies do not create liberty interests for inmates, correctional administrations do not have to worry about creating “liberty” interests by having scarcely any regulations, or by conferring standardless discretion on correctional personnel. Secondly, the court chastised many federal courts that got involved with day-to-day corrections management issues – “not affording appropriate deference and flexibility to officials trying to manage a volatile environment.” Administrative deference is still being challenged by lower courts and still, the Supreme Court has recently and often defended this stance.
Inmate discipline can only happen when the officers and inmates know the expectations, policies, procedures and process. There are over a dozen legal-based guidelines focused on inmate discipline; however, here are some operational practices below that are worth highlighting.
In order to create effective inmate discipline, correctional facilities should have written policies and procedures governing discipline. Directives should establish the purpose of inmate discipline as a process which utilizes the punitive actions as a means of enforcing administrative rules and regulations governing inmate behavior and conduct.
- Written policies and procedures should set forth the function and purpose of inmate discipline and sanctions. Jail policies and procedures should differentiate between the punitive function and intent of discipline and the non-punitive function and intent of classification. The filing of charges in a judicial court for the violation of Federal, State or Local laws does not prevent the administrative processing of the same act as a disciplinary matter or the filing of a disciplinary action against the inmate. Without direct authorization of the administration, inmates should not be permitted direct access to facility incident reports, videos or disciplinary hearing forms.
- Violations should be categorized by severity, reasonable and consistent with the severity of the violation (major violations, minor violations, informal disciplinary/violation cases that may not require due process).
- The facility should not impose or permit the following as a sanctions for rule violations:
- Corporal punishment
- Deprivation of clothing, bedding, personal hygiene
- Access to legal services
- Loss of food services
- Ability to communicate (paper, envelopes, writing implements)
- Access to exercise
- When an officer or staff member witnesses, or has a reasonable belief that an inmate has violated a rule, the staff member should have a clear disciplinary process to follow, which may include the following:
- Have the option to verbally reprimand and/or counsel the inmate or place them on notice for disciplinary report.
- If the option is to place the inmate on notice for disciplinary report, the reporting staff member should prepare an Incident Report and Disciplinary Report to submit to a designated supervisor for review. Many facilities require these reports to be completed prior to the reporting staff member’s end of shift. Incident and Disciplinary Reports are generally investigated by a designated supervisor (Shift Supervisor for example) and documented by that supervisor within 24 hours of the incident. The supervisor shall review the reports for content to ensure accuracy, then sign and date the Disciplinary Report. The supervisor should also determine if the inmate requires to be assigned to Pre-Hearing Detention. Once finalized, the inmate should be served with the Disciplinary Report, usually delivered by the Shift Supervisor.
- The Incident Report should include, but not be limited to, the following:
- The date and time of the incident;
- An explanation of the event (who, what, when, where, and how);
- Any staff or inmate witnesses to the incident;
- Disposition of physical evidence;
- Any immediate action taken; and
- Any unusual inmate behavior.
- A Disciplinary Report submitted to the Supervisor by the reporting staff member (along with the Incident Report as outlined above) can assist to:
- Identify specific rules violated
- Describe the formal statement of the charge
- Provide evidence (photos, contraband, etc.)
The report should be signed and dated by the reporting staff member.
 Sandin v. Conner 515 U.S. 472, 476 (1995)
 See State v. Alvey, 67 Haw. 49, 55, 678 P. 2d 5, 9 (1984).
 Wolff v. McDonnell, 418 U. S. 539-555 (1974).
 Sandin v. Conner 515 U.S. 482 (1995)
 See NIJO Legal-Based Jail Guideline D06.01.01 to D07.03.02 addressing Disciplinary function, violations, restrictions, due process, hearings, etc.