Lesson 5: Disciplinary Infractions
Lesson 5: Disciplinary Infractions
Anyone who anticipates serving time in white collar should have a basic understanding of how the “inmate disciplinary program” operates. Those who work with our experts at White Collar Advice will receive detailed lessons on the BOP’s Program Statement that covers the disciplinary code. Individuals who want to study independently should invest the time necessary to understand this code by taking the following steps:
• Visit: www.BOP.gov
• Click on Resources
o Review Program Statement 5270
By understanding how the Bureau of Prisons processes disciplinary matters, individuals will know more about how to navigate their way around them. Further, in the event that they’re cited with a disciplinary infraction, they will know what to expect and what options are available to them.
The Code of Federal Regulations codifies a series of “Prohibited Acts” in white collar, dividing them into four distinct categories that include:
• Greatest-severity prohibited acts (Series 100)
• High-severity prohibited acts (Series 200)
• Moderate-severity prohibited acts (Series 300)
• Low-severity prohibited acts (Series 200)
Clients with whom we work at White Collar Advice do not have any intention of receiving disciplinary problems while in prison. Despite such good intentions, the reality is that prisons are volatile communities where the unexpected is routine. As experts on the system have a duty to educate others on this disciplinary code. Individuals who understand how easily they can become trapped into disciplinary problems will have a better context from which to make decisions and avoid altercations with the disciplinary process.
Later in the lesson, we will describe what distinguishes the different gradations of disciplinary infractions. First, we want to provide a narrative that will put the entire disciplinary process into context. This lesson will adhere to the following order:
• Who starts a disciplinary infraction?
• What happens when an individual is charged with a disciplinary infraction?
• What should an individual do if he is charged with a disciplinary infraction?
• What sanctions follow a disciplinary infraction?
• What steps can I take to minimize my exposure to the potential of a disciplinary infraction?
Who starts a disciplinary infraction?
Understanding disciplinary infractions requires insight on the culture of confinement. White Collars are isolated communities, with hundreds or thousands of men living together inside boundaries. Just as law enforcement relies upon laws to keep citizens in the broader society in order, prison administrators rely upon the disciplinary code to keep order within the institution.
Experts at White Collar Advice remind our clients that liberties, protection, and the level of due process that they took for granted in society does not exist in prison. For example, law enforcement officers require much higher standards of proof before they initiate actions that lead to either charges or arrest. Further, if an individual is charged with wrongdoing in society, the defendant has access to lawyers and judicial proceedings where he can argue for his liberty.
In contrast, staff members in prison can cite an inmate with a rule violation for the most trivial of reasons. Further, there are so many possible violations, that on any given day, a staff member could find some rule violation on just about anyone serving time. That’s one reason we consider it crucial to educate our clients on how the system operates. They may make their own decisions with regard to whether they want to expose themselves to possible complications with regard to the disciplinary code.
Every employee of the prison system is a prison guard first, and each of those employees has the power to cite an individual with a disciplinary infraction. In other words, not only guards—or officers—can write disciplinary infractions; secretaries, cooks, chaplains, or electricians can write disciplinary infractions. Many staff members write those reports routinely.
Prisoners and staff members alike use the jargon “shot” to refer to a disciplinary infraction. In other words, a staff member cites “an inmate” with a disciplinary infraction by “writing a shot.” That shot will complicate a prisoner’s journey, bringing lasting ramifications that we describe throughout these lessons. Basically, a disciplinary infraction, or shot, results in further restrictions of liberty. For example, if an individual receives a shot, and authorities affirm the charge, the sanction may include reduced amounts of “good time,” loss of privileges, and limitations on an individual’s contact with family or community. The process of issuing a shot follows:
A staff member suspects that an inmate violated the disciplinary code. A staff member may become aware of that violation in any number of ways. Some examples follow:
• Another inmate may tell a staff member that he knows someone else violated a prison rule.
• A staff member may observe an inmate violate a rule.
• Routine surveillance from security cameras may reveal a rule violation.
• Routine review of a phone record may prompt a staff member to cite an individual with a rule violation.
• A routine search of an inmate’s living or work area may result in a rule violation.
The possibilities for rule violations are endless. Clearly, clients who retain us at White Collar Advice have the best of intentions and they cannot fathom themselves being involved in any type of activity that could lead to an altercation with the disciplinary code. Our experts, however, have different experiences and they work to broaden awareness of our clients before they surrender to white collar.
The culture of confinement differs in significant ways from anything our clients have experienced before. Perhaps an example is in order. Margaret retained us on behalf of her husband, John, who surrendered to prison. John was convicted of violating securities laws and he didn’t have any experience with the prison system. As such, he did not know anything about the disciplinary code or how severe it could be. Nor did John know how to prepare himself before he surrendered.
When John surrendered to serve his 36-month sentence inside of a minimum-security camp, he had intentions of observing every prison rule and returning to his family without causing any further disruptions. Unfortunately, John’s journey did not begin well.
When John surrendered to the camp, authorities did not have a copy of his PSI on file. John didn’t have any idea of steps he could take to avoid that complication before he surrendered. John’s defense attorney was exceptional at negotiating a favorable sentence, but the attorney did not have experience in dealing with all the nuances of white collar. As a consequence, John got off to a bad start.
Without a PSI on file, administrators at the prison camp sent John to the Special Housing Unit (SHU). In other words, they locked him “in the hole.” The SHU is basically a jail within the prison. Authorities send individuals to the SHU as a sanction. They also lock people in SHU if they choose to conduct “an investigation.”
In John’s case, authorities wanted to investigate what happened to John’s PSI. John didn’t have any idea what the staff members were talking about when they said that they didn’t have his PSI. Nor did he know the implications that would follow. Guards took him to a cell and locked him inside. The staff informed John that he would remain in the SHU until they could locate his PSI. While locked in the SHU cell, John did not have free access to the telephone. Basically, the SHU cell was a concrete, windowless bunker. It contained two metal racks bolted to the wall that would serve as a bed and a thin mat on each. It had a stainless steel toilet and sink. Other than gang markings that decorated the walls, that was it.
John paced in the cell for two days before he was allowed to use the telephone. When a guard brought him a phone, the only phone number that John was able to dial was his wife’s. He called Margaret, his wife. When John spoke with her, he told her that there was a problem with the PSI and that he needed to talk with his attorney. Margaret patched John through on a three-way call. John explained the problem to his attorney and his attorney said that he would look into it.
All seemed fine until later that evening, when a guard stopped by his cell. The guard called John to the door of the SHU cell. Then he cited John with a disciplinary infraction for abuse of the telephone. John didn’t know what the guard was talking about. Rather than listening, the guard proceeded to read John his Miranda rights. When the guard told John that he had the right to remain silent, and that anything he said would be used against him, John’s legs began to shake involuntarily. John didn’t understand. He couldn’t believe that the guard was charging him with an offense.
A guard who had been monitoring inmate telephone calls charged John with making a three-way phone call. John said that no one had told him that he wasn’t allowed to make a three-way phone call. He asked his wife to patch him through to his attorney because he wanted to resolve the issue of the missing PSI. The guard then made a note of John’s comment on the disciplinary infraction.
Two days later, a Disciplinary Hearing Officer (DHO) presided over a hearing to resolve the matter. When the DHO read about John’s admission of instructing his wife to make the three-way call, the DHO found John guilty of committing the prohibited act. The DHO imposed the following sanction:
• One year loss of telephone privileges
• Six months loss of visiting privileges
• One month loss of commissary privileges
John protested, saying that he would need to use the phone to communicate with his family. The DHO listened, then told John that he should have thought about his family before he broke the law.
Obviously, John did not surrender to prison with an intention of violating any prison rules. Yet the system did not accommodate him. Fortunately, our experts at White Collar Advice succeeded in helping Margaret and John to reverse that finding. We were able to show that when authorities locked John in SHU, they failed to provide him with an inmate handbook that explained the rules pertaining to three-way calls. As a consequence, we prevailed on appeal through administrative-remedy, but four months passed before John was able to use the phone or visit his family.
Situations like the one above convince our experts at White Collar Advice that we have an obligation to prepare more clients for the challenges of confinement before they surrender. Even though an individual doesn’t have any intention of violating the disciplinary code, the bureaucracy of confinement can bring unanticipated consequences.
Issuing the “Shot” or Disciplinary Infraction:
Once a staff member becomes aware that inmate has violated the disciplinary code, the staff member writes a shot. Rules encourage the staff member to write the shot within 24 hours, but it’s not absolutely necessary for a staff member to comply with the 24-hour rule. At White Collar Advice, we encourage our clients to know and understand all of the rules because staff members will expect all prisoners to comply with those rules. Nevertheless, we tell our clients not to expect staff members to abide by all policies designed to govern the institution.
The shot will detail the following:
• Time the officer became aware of the incident
• Time the shot was written
• Disciplinary code that the inmate is alleged to have violated
• Description of the disciplinary infraction
After an officer issues a disciplinary infraction, a representative from the “Lieutenant’s Office” will present the shot to the inmate. The lieutenant will read the inmate his Miranda rights, informing the inmate that he may remain silent and such. If the inmate wants to make a statement that he believes could exonerate him, the inmate should make the statement at the time the lieutenant requests whether he has anything to say. If the inmate chooses to remain silent, “the system” may or may not give him another opportunity to explain.
What happens when an individual is charged with a disciplinary infraction?
The lieutenant who issues the shot has the discretion to dismiss the charges. At White Collar Advice, we advise our clients that it might be more likely to persuade a rattlesnake not to eat a rabbit than it would be for a lieutenant to dismiss disciplinary charges at that early stage of the proceeding. Nevertheless, if an inmate agrees to serve the lieutenant as an informant, the lieutenant may choose to exercise his discretion and dismiss the charges.
Assuming the lieutenant allows the charges against the inmate to stand, the next step of the process would be for the lieutenant “to investigate” the allegation of misconduct. The investigation is a perfunctory process. If the inmate makes a statement, the lieutenant will make some inquiries to learn more. After that so-called investigation, the lieutenant will either dismiss the charges or advance the process by passing the shot along to the Unit Disciplinary Committee (UDC).
The UDC refers to the staff members who have authority to hold an “initial hearing” for the inmate disciplinary proceedings. UDC officers are like the judge and the jury. They usually include a Unit Manager, a Case Manager, a Counselor, or two out of three. Those individuals preside over the first stage of the disciplinary hearing.
During that disciplinary hearing, a staff member reads the charges against the inmate. Then they read the investigative report if the lieutenant completed one. Then the members of the UDC inquire whether the inmate has a response to the charges. At that point, the UDC will do one of the following:
1. find that the inmate is guilty of the violation and impose a sanction,
2. dismiss the charges, or
3. refer the matter to the Disciplinary Hearing Officer (DHO).
The DHO is an officer that reviews and presides over the disciplinary hearings of all greatest-severity infractions, most high-severity infractions, and some moderate-severity infractions. The DHO will repeat the process of the UDC. Then the DHO will make a final decision on whether the inmate is guilty of the infraction or dismiss the charges. Many inmates refer to the entire disciplinary process as a kangaroo court proceeding. If one prison guard writes an infraction, others within the system will take a principled path to support the process.
What should an individual do if he is charged with a disciplinary infraction?
Our experts help clients understand the disciplinary code and process. We’re convinced that the more an individual knows about the process, the better he or she can avoid altercations with the disciplinary code. If those altercations surface, the individual may make an informed decision on how best to proceed.
At White Collar Advice, we advise our clients to think strategically in the event that they’re charged with a disciplinary infraction. A journey through prison can bring many complications, and a wise individual must choose which battles are worth fighting. We only encourage individuals to contest disciplinary infractions if they’re absolutely innocent of the infraction. In the example cited earlier, where Margaret retained us to help her reverse the onerous sanction placed upon James for the three-way phone call, it made sense to appeal both the finding of guilt and the draconian sanction.
James was absolutely innocent of the offense and the punishment was severe. We could prove his innocence. Guards locked James in the SHU within a few hours of his surrender to prison. Since he never received an “inmate handbook,” notifying him of the rules, no reasonable person would expect James to know rules about conference calls. Since James didn’t know the rules:
• He did not know that the couldn’t use the phone to make three-way calls;
• He did not know how to respond when he was charged with a disciplinary infraction;
• He did not know how to respond when a DHO imposed severe sanctions.
If an individual is charged with a disciplinary infraction, the first step is to decide how he wants to respond. In the event that the inmate wants to accept the charge and sanction, we advise our clients to respond as follows:
• I recognize that I made a bad decision and I apologize. Although it’s no excuse, I’ve been under a lot of stress because I miss my family. I’m going to do better and you won’t have any further problems from me.
Officers in the BOP are used to hearing complaints or denials of wrongdoing from inmates. When an inmate immediately admits culpability and expressions some sign of remorse, officers tend to impose less severe sanctions.
On the other hand, if an individual chooses to contest the charge, our experts at White Collar Advice suggest that he adhere to the following steps:
• When a lieutenant notifies an inmate of a disciplinary infraction and recites the charges, the lieutenant will ask the inmate whether he has any comment. The inmate should respond as follows:
• “I would like to make a written response that you can attach to the record.”
• The lieutenant then may ask, “just tell me your statement and I’ll include it.”
• The inmate should respond:
• “Please let the record show that I want to make a written response and I will submit the written response within two hours (or within a reasonable time, but that same day.).
We encourage our clients to make a written response for the purposes of appeal. When an officer charges an inmate with a disciplinary infraction, the odds are very high that others within the system will uphold the charges and impose a sanction. Individuals who want to appeal the charges serve themselves well when they have a fully documented, written record. That record should begin at the earliest possible stage, which is when the lieutenant reads the charge.
The written response should include the inmate’s version of events and provide as much clarity as possible.
Inmates should expect that the Unit Disciplinary Committee will find him guilty of committing the offense, guilt or innocence notwithstanding. The written record will help with the appeal, which we discuss in the next lesson, on administrative remedy procedures.
What sanctions follow a disciplinary infraction?
The sanctions that follow a disciplinary infraction will depend upon the nature of the charges. Program Statement 5270 details the possibilities. Those sanction may include a combination of the following, depending upon the severity of the charge:
• Time in SHU
• Forfeiture of good time
• Change of housing or job assignment
• Disciplinary transfer to a higher security prison
• Monetary restitution
• Loss of telephone, visiting, or mail privileges
• Additional criminal charges
What steps can I take to minimize my exposure to the potential of a disciplinary infraction?
At White Collar Advice, our experts offer extensive training on the prison culture to teach our clients how to avoid disciplinary infractions. An individual who fully understands the disciplinary code, and then avoids committing disciplinary infractions, stands the best chance of not being charged. Yet living in prison can bring complications that no one can expect. Although we can control our own decisions and behavior, we cannot control the decisions and behaviors of others. Sometimes, the toxic culture of confinement brings consequences that no one anticipates.
For example, an individual may plead guilty to a white-collar crime like bank fraud or tax evasion. After receiving a sentence of 36 months, the inmate may learn that administrators in the BOP designated him to serve the sentence in a minimum-security camp. As such, the inmate may believe that he’ll serve his sentence around other people who do not adhere to a criminal lifestyle. In reality, he’ll share closed spaces with people of questionable mental stability. Guards will determine where here he sleeps, and with whom he shares living quarters.
He will not have much insight into the values or motivations of the person who shares a cell, room, cubicle, or bunk with him. If it’s a person from a criminal lifestyle who chooses to engage in contraband, that person may hide the contraband in the living quarters. What will happen if a guard discovers that contraband?
If a guard finds the contraband, the guard may charge the white-collar offender with a disciplinary infraction. At that point, the charges become a problem, potentially a big problem. Staff members who will determine guilt will not take the time to look at the prisoner’s background. All they will see is the charge. They will want to support their fellow officer who wrote the disciplinary infraction and they will want to support the process. It’s crucial that individuals understand such scenarios and know how to respond.
When experts at White Collar Advice reveal the strategies that allowed them to avoid disciplinary infractions, most cited avoidance of disciplinary problems as the most effective strategy. Successful prisoners ensured that they served time with a purpose and established a principled course of action. Their activities minimized their exposure to trouble. They tried to serve time alone and were very cautious about the people with whom they chose to interact.
In the following lesson, we advise on the Administrative Remedy process, which inmates may use as a resource whenever they encounter problems with the prison system. The administrative remedy process is not only used to appeal disciplinary infractions, but as a response to any grievance an inmate has with the system.
• In what ways would participation in organized sports in prison influence the possibility of receiving disciplinary infractions?
• How would you respond to a lieutenant who offered to dismiss a disciplinary infraction if you agreed to serve as a confidential informant?
• If others became aware that you received a disciplinary infraction, how would you respond to their inquiries about what happened?
• What would steps could James have taken to avoid the disciplinary infraction that he received?
• In what ways are you preparing yourself now for the challenges that can present themselves during confinement?