judicial intervention in prison discipline

Journal of Criminal Law and Criminology

Volume 63 | Issue 2 Article 4

1972

Judicial Intervention in Prison Discipline

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Recommended CitationJudicial Intervention in Prison Discipline, 63 J. Crim. L. Criminology & Police Sci. 200 (1972)

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THE Jounan or Cnmn;AL LAw, CRIMINOLOOY AND POLICE SCIENCECopyright 0 1972 by Northwestern University School of Law

CRIMINOLOGYJUDICIAL INTERVENTION IN PRISON DISCIPLINE

HARVARD CENTER FOR CRIMINAL JUSTICE*

In recent years there has been growing attentionto the question of prisoners' rights and to problemsrelating to discretion in prison administration.The catastrophe at Attica greatly increased theconcern over conditions and inadequacies in ournation's correctional institutions.'

One crucial aspect of correctional problems-inmate discipline-was faced in a consent decreeissued on March 11, 1970, by Federal JudgeRaymond J. Pettine.2 In Morris v. Travisono,3

Judge Pettine established comprehensive proce-dural regulations for the handling of disciplinarymatters in the Rhode Island Adult CorrectionalInstitution (ACI). A short time after the entry ofthat decree, the Center for Criminal Justice atHarvard Law School agreed to study the impactof the Morris decision within the prison.4 This

* This article is the result of research undertaken inthe summer of 1970 by the Center for Criminal Justiceof the Harvard Law School. Edward J. Dauber, Har-vard Law School '69, had continuing responsibility forthe project and the preparation of this article. Mr.Dauber, a staff member of the Center until July, 1971,is now a member of the faculty of the Institute ofCriminology and Criminal Law, University of TelAviv, Israel. William Falik, Harvard Law School '72,did field work and wrote and edited much of the article.The planning for the project and the analysis of thedata were directed by James Vorenberg, Professor ofraw at Harvard Law School and Director of the Centerfor Criminal Justice, and Lloyd E. Ohlin, Professor ofCriminology at Harvard Law School and ResearchDirector of the Center. Elinor Halprin, a staff memberof the Center, assisted with the writing and did muchof the editing.

In addition, Kenneth McNerny, Harvard LawSchool '72, Charles Hollen, Harvard Law School '71,and Alma Young, then a staff member of the Center,did field work and contributed material for the article.Comments and suggestions were received from PaulNejelski, then Assistant Director of the Center, andBertram Griggs and Gary McCune, both Fellows of theCenter for Criminal Justice in 1970-71. Mr. Griggs isnow Superintendent of the California Institution forMen at Chino, California, and Mr. McCune is AssociateWarden at the Federal Correctional Institution atLompoc, California.

'N. Y. Times. Sept. 14, 1971, at 1, col. 8.2 310 F. Supp. 857 (D.R.I. 1970).3Id.

The Center began its study in June, 1970, with the

Vol. 63, No. 2Printed in U.S.A.

article documents and analyzes the results of thatstudy.

There were several reasons for the study. Therecent furor over the treatment of inmates,5

much of it centering on the problems of inmatediscipline, indicated a definite need for an ob-jective investigation of prison disciplinary prac-tices. Moreover, while alleged abuses of discretionby correctional administrators have become in-creasingly a concern of the courts, in formulatingtheir decisions they have available little empiricalinformation and analysis treating the centralproblem of balancing prison administrative needswith inmate rights.

primary field work conducted from June to August,1970. A variety of research techniques were employed:(1) A sample of 460 disciplinary records from both themaximum and medium-minimum facilities were exam-ined, 263 from maximum covering the period from July,1969, to October, 1970, and 194 from medium-minimumcovering the January, 1968-December, 1969 period.These records were chosen because they were readilyavailable at the prison, and because they coveredperiods both before and after the entry of the Morrisdecree. (2) Disciplinary and classification hearings wereobserved during the summer of 1970. Of the 163 hear-ings monitored, 58 were disciplinary proceedings. (3) Asample of sixty inmates was interviewed. (4) Staff mem-bers were interviewed. (5) Related court proceedingswere monitored.

5 During the past few years, there have been largenumbers of inmate protests, strikes, and rebellions, ofwhich Attica was certainly the most disastrous. Litiga-tion dealing with matters of internal prison administra-tion has proliferated and model bills of rights forinmates have cropped up throughout the country. Inaddition, legal journals and other media have givenprison problems increasing attention. See, e.g., Hirsch-kop & Milleman, The Unconstitutionality of PrisonLife, 55 VA. L. Rav. 795 (1969); Kimball & Newman,Judicial Intervention in Correctional Decisions: Threatand Response, 14 Canmr & D IaN. 1 (1968); Kraft,Prison Disciplinary Practices and Procedures: Is DueProcess Provided?, 47 N.D.L. Rxv. 9 (1970); Rubin,Developments in Correctional Law, 16 Ciz= & DELIn.185 (1970); Turner, Establishing the Rule of Law inPrisons: A Manual for Prisoners' Rights in Litigation,23 SrAN. L. Rv. 473 (1971); Comment, Decency andFairness: An Emerging Judicial Role in Prison Reform,57 VA. L. REv. 841 (1971). Note, Administrative Fair-ness in Corrections, 1969 Wis. L. REv. 587.

JUDICIAL INTERVENTION IN PRISON DISCIPLINE

I. TnE CouRTs AND THE PRISONS-AN OVERVIEW

Judicial intervention is a recent phenomenon inthe correctional field. The judiciary has tradi-tionally hesitated to become involved in casesconcerning the administration of internal prisonaffairs. Typical of such judicial restraint was theSupreme Court's statement that "[f]awful in-carceration brings about the necessary withdrawalor limitation of many privileges and rights, aretraction justified by the considerations under-lying our penal system." 6 The courts felt obliged todefer to the greater expertise which prison ad-ministrators were presumed to have in thesematters3. Nor was the judiciary eager to undertakethe burden of continuing supervision of prisonadministration.8

In recent years, however, the courts have re-placed this passive restraint with cautious scrutinyand intervention. This reversal of the traditionalstance was heralded by the Sixth Circuit's now-famous dictum that "[a] prisoner retains all therights of an ordinary citizen except those ex-pressly, or by necessary implication, taken fromhim by law." 9 Originally, courts would onlydepart from the hands-off doctrine when theyfound the prison's actions to be arbitrary orcapricious, 10 but eventually they began to con-sider challenges to prison officials' exercise oftraditional powers.n

A summary review of recent judicial decisionsconcerning prison discipline and inmate rightswill place the Morris decision in its proper develop-mental context. 2 A fundamental decision in thisevolution was Ex parte Hull,13 in which theSupreme Court declared that prison officials could

6 Price v. Johnston, 334 U.S. 266, 285 (1948).7 See, e.g., United States ex rel. Morris v. Radio Sta-

tion WENR, 209 F.2d 105 (7th Cir. 1953).8 See, e.g., Stroud v. Swope, 187 F.2d 850 (9th Cir.),

cert. denied, 342 U.S. 829 (1951): "We reject the argu-ment that any such burden of supervision may lawfullybe imposed upon, or assumed by, the courts." 187F.2d at 851.9 Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir.

1944).10 Conklin v. Wainwright, 424 F.2d 516 (5th Cir.

1970), cert. denied, 400 U.S. 965 (1971).11 See Kimball & Newman, supra note 5, at 3.12 For an extensive account of judicial intervention

in prisons, see Kimball & Newman, supra note 5;Turner, supra note 5; Jacob, Prison Discipline andInmate Rights, 5 HARv. Cirv. RIGHTs-Crv. LiB. L. REv.227 (1970).

13312 U.S. 546 (1941). "[Ihe state and its officersmay not abridge or impair petitioner's right to applyto a federal court for a writ of habeas corpus." Id.at 549.

not deny inmates access to the judicial process.This critical right of access 14 has since been ex-tended so as to invalidate prison regulationswhich placed excessive limitations on the prepara-tion of legal documents,1 on the types of librarymaterials -available,"1 and on the assistance ofjail-house lawyers. 7

Moreover, courts have recently intervenedvigorously when correctional officials interferedwith inmates' fundamental first amendmentrights. Fear of institutional disruption, oftenposited as a determinative justification for limitingprisoners' rights,"s was found insufficient to overridean inmate's right to exercise his freedom of reli-gion, in the absence of "a clear and present dangeiof a breach of prison security or discipline or someother substantial interference with the orderlyfunctioning of the institution." '1 Courts haveupheld the right to receive religious publications, 20

correspond with ministers to obtain spiritualadvice,' and meet together to worship." Inmateshave attempted to secure freedom from institu-tional censorship and interference with corre-spondence, 2' and to establish a right to adequate

'4See Stiltner v. Rhay, 322 F.2d 314, 316 (9th Cir.1963): "[R]easonable access to the courts is basic toall other rights..., for it is essential to their enforce-ment."

"5 See, e.g., Sigafus v. Brown, 416 F.2d 105 (7th Cir.1969).

"6 See, e.g., Gilmore v. Lynch, 319 F. Supp 105 (N.D.Cal. 1970), a ff'd per curiam sub nor. Younger v. Gil-more, 404 U.S. 15 (1971).

17 Johnson v. Avery, 393 U.S. 483 (1969) (If a lawyeris not available, a prisoner has a right to ask a fellowinmate to assist him in formulating a plea for relief).

"8 Cooper v. Pate, 324 F.2d 165 (7th Cir. 1963), rev'd378 U.S. 546 (1964) (Court took judicial notice ofstudies showing that Muslims cause trouble in prison,with violence as a likely consequence).

19Long v. Parker, 390 F.2d 816, 822 (3d Cir. 1968).But see In re Ferguson, 55 Cal. 2d 663, 361 P.2d 417(1961).

2"See Walker v. Blackwell, 411 F.2d 23 (5th Cir.1969).

"1 See id. See also Brown v. McGinnis, 10 N.Y.2d531, 180 N.E.2d 791, 225 N.Y.S.2d 497 (1963).

"2 Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967); seeShaw v. McGinnis, 14 N.Y.2d 864, 200 N.E.2d 636,251 N.Y.S.2d 971 (1964).2

3Courts are divided as to whether prison officialsshould be permitted to open legal correspondence.Most courts would probably permit this procedure, butsome courts protect confidentiality, especially sinceprison officials may be the defendants in upcominglitigation. See Marsh v. Moore, 325 F. Supp. 392 (D.Mass. 1971); Peoples v. Wainwright, 325 F. Supp. 402(M.D. Fla. 1971); Smith v. Robbins, 328 F. Supp. 162(D. Me. 1971) (can open mail from an attorney toinspect for contraband only in prisoner's presence). Seealso Palmigiano v. Travisono, 317 F. Supp. 776, 785-91 (D.R.I. 1970) (search warrant required beforeinmate outgoing mail can be opened).

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HARVARD CENTER FOR CRIMINAL JUSTICE

medical treatment,24 conjugal visits,2 5 and racialintegration of prison and jail facilities. 26

With increasing frequency prisoners' claimshave focused on the internal prison disciplinaryprocess.27 Formerly, courts had held that inmatediscipline was a matter of administrative dis-cretion with which they would not interfere.2 8

Despite inmate complaints of cruel and unusualpunishment, courts had upheld practices such aswhippings with cat-o-nine tails, 29 other forms ofcorporal punishment, 0 segregation,n and solitary

24Inmates are entitled to medical care while inprison, Edwards v. Duncan, 355 F.2d 993 (4th Cir.1966), but no judicial relief will be given if the prisonerdisagrees with the treatment chosen by the prisonphysician, Coppinger v. Townsend, 398 F.2d 392(10th Cir. 1968), if the treatment has been delayed,Mayfield v. Craven, 433 F.2d 873 (9th Cir. 1970), oreven if gross negligence by the physician is charged,Owens v. Alldridge, 311 F. Supp. 667 (W.D. Okla.1970). Only treatment which is not recognized by anymedical authority will provoke judicial intervention,Ramsey v. Ciccone, 310 F. Supp. 600 (W.D. Mo.1970); Veals v. Ciccone, 281 F. Supp. 1017 (W.D. Mo.1968). However, if there is a difference of opinion be-tween the physician and prison officials, the officialshave the burden of proving that their purposes couldnot be adequately served without jeopardizing thepatient's health, Sawyer v. Sigler, 320 F. Supp. 690(D. Neb. 1970), aff'd, 445 F.2d 818 (8th Cir. 1971).

"5See Payne v. District of Columbia, 253 F.2d 867(D.C. Cir. 1958).26See Washington v. Lee, 263 F. Supp. 327 (M.D.Ala. 1966), a.ff'd, 390 U.S. 333 (1967) (per curiam);Montgomery v. Oakley Training School, 426 F.2d 269(5th Cir. 1970); Board of Managers of ArkansasTraining School v. George, 377 F.2d 228 (8th Cir.1967). Cf. Dixon v. Duncan, 218 F. Supp. 157 (E.D.Va. 1963).

2 While we have found no case challenging the typesof misconduct for which an inmate may be disciplined,there have been numerous suits challenging thelegitimacy of the punishment given and the proceduresemployed in arriving at disciplinary determination.See, e.g., Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark.1970), afftd, 442 F.2d 304 (5th Cir. 1971) (class actionunder eighth and thirteenth amendments); Graham v.Willingham, 384 F.2d 367 (10th Cir. 1967) (segregatedconfinement alleged to be cruel and unusual punish-ment); United States ex rel. Atterbury v. Ragen, 237F.2d 953 (7th Cir. 1956) (action for damages).

28 See, e.g., Williams v. Steele, 194 F.2d 32 (8th Cir.1952); United States ex rel. Atterbury v. Ragen, 237F.2d 953 (7th Cir. 1956); Graham v. Willingham, 384F.2d 367 (10th Cir. 1967).

29 In re Candido, 31 Hawaii 982 (1931).30 See Talley v. Stephens, 247 F. Supp. 683 (E.D.

Ark. 1965) (whipping is not cruel and unusual punish-ment per se, but corporal punishment must not be ex-cessive and must be applied by recognizable stand-ards); United States ex rel. Atterbury v. Ragen, 237F.2d 953 (7th Cir. 1956) (inmate may have a statecause of action for beatings by prison officials, butno federal right has been violated).

31 Graham v. Willingham, 384 F.2d 367 (10th Cir.1967).

confinement. 2 Recently, however, courts havegranted relief from these and similar punishments.In Jackson v. Bishop,3 for example, JudgeBlackmun, then speaking for the Eighth CircuitCourt of Appeals, enjoined any use of- the strap orany other corporal punishment as violative of theeighth amendment. Other courts have recentlyenjoined the use of "dry" cells 34 and "strip" cellswhich did not meet cleanliness standards.35 Indeed,some courts have gone even further. In Holt v.Sarver,6 the federal district court declared thatconditions in the Arkansas penitentiary systemwere so bad that any confinement of personsthere violated the eighth amendment's prohibitionagainst cruel and unusual punishment.

This new judicial inclination toward inter-vention has also been extended to abuses of theprison disciplinary process. To date, severalfederal decisions have been concerned with thepromulgation of broad procedural rules in thisarea. In Sostre v. Rockefeller,r Judge Motleyresponded to the segregation of an inmate in aform of solitary confinement for over one yearby imposing requirements of written notice, arecorded hearing before a disinterested official,representation by retained counsel or an appointedcounsel-substitute at the disciplinary hearing,direct and cross-examination of witnesses, and adecision supported by a written rationale. TheSecond Circuit reversed on appeal, reasoning thatJudge Motley was wrong to conclude that each ofthe procedural elements incorporated in herinjunction was constitutionally required. Thecourt of appeals did recognize, however, thatpunishment probably could not be imposed with-out satisfying a prisoner's right to confront hisaccusers, to be informed of evidence against him,and to a reasonable opportunity to explain hisactions.n

32 Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970),aff'd, 439 F.2d 146 (5th Cir. 1971).

33404 F.2d 571 (8th Cir. 1968).3 4See Hancock v. Avery, 301 F. Supp. 786 (M.D.

Tenn. 1969).35 See Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.

Cal. 1966).16309 F. Supp. 362 (E.D. Ark. 1970).31312 F. Supp. 863 (S.D.N.Y. 1970), modified sub

noam. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971),cert. denied, -U.S.- (1972) Cf. Burns v. Swenson, 288F. Supp. 4 (W.D. Mo. 1968), where the court approvednew prison disciplinary procedures as constitutionallysufficient. In a subsequent modification, the courtwithdrew the approval and left the issue undecided.300 F. Supp. 759 (W.D. Mo. 1969).

3 Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir.1971), cert. denied, -U.S.- (1972).

[VCol. 63


In Nolan v. Scafati, Judge Wyzanski declaredin dictum that due process required

that before serious penalty is imposed... the au-thorities must (1) advise the prisoner of the chargeof misconduct, (2) inform the prisoner of the natureof the evidence against him, (3) give him an oppor-tunity to be heard in his own defense, and (4)reach its determination on the basis of substantialevidence 40

The First Circuit remanded on appeal, avoidingthe determination of precisely which proceduralsafeguards were necessary for such disciplinaryaction.- More recently, however, two otherdistrict courts have imposed similar proceduralsafeguards on prison disciplinary hearings.42

Whether or not these opinions are affirmed onappeal, or follow the decisions in Sostre and Nolan,the cautious attitude of the Second Circuit withregard to judicial intervention in prison disciplinaryprocesses is worthy of note:

It would be mere speculation for us to decree thatthe effect of equipping prisoners with more elab-orate constitutional weapons against the adminis-tration of discipline by prison authorities wouldbe more soothing to the prison atmosphere and re-habilitative of the prisoner or, on the other hand,more disquieting and destructive of remedial

39 306 F. Supp. 1 (D. Mass. 1969) (Petitioner Nolanhad asked for the right to counsel, cross-examination,and to call witnesses. Judge Wyzanski ruled that thesespecific safeguards were not constitutionally requiredand that the interest of security in preserving theauthority of prison officials in the maintenance ofprison discipline generally outweighed whateveradvantages might attend the granting of such rights).40Id. at 3.

41430 F.2d 548 1st Cir. (1970).42 Clutchette v. Procunier, 328 F. Supp. 767 (N.D.

Cal. 1971) (When accused of an offense that couldresult in criminal penalties, prisoner must be givenMiranda warnings, counsel, and the right to call andcross-examine witnesses. When serious internal sanc-tions could be imposed, prisoner has a right to detailednotice seven days before a hearing before an impartialfact-finder who is not a material witness or a member ofa reviewing authority, to counsel or prison-appointedcounsel-substitute, to call and cross-examine witnesses,to a written decision, and to notice of appeal procedures,where permitted); Bundy v. Cannon, 328 F. Supp.165 (D. Md. 1971) (Within 48 hours of the offense, theprisoner should be given notice of a hearing to be heldwithin 72 hours of the offense before an impartialtribunal, at which voluntary inmate or staff assistancewill be available. For minor infractions, a writtensummary of the proceedings and reason for decisionwill be provided, with a right to appeal within threedays. For major violations, witnesses may be calledand cross-examined if the tribunal thinks this ispractical and relevant. A written report and decisionbased on substantial evidence will be provided and thewarden will review all cases involving major viola-tions).

ends- This a judgment entrusted to state officials,not federal judges.

We are particularly unwilling to interfere withstate administrative processes when reliable, de-tailed information or empirical studies are asscanty as they are on the subject of prison dis-ciplinary procedures.43

Even where the courts do intercede, the effectsof judicial intervention may not always be salu-tary. Prison officials may view judicial involvementas a serious threat to their authority.1 Moreover, adecision adverse to the prison administration maycreate a new assortment of disciplinary problems,by undermining inmate respect for prison officials.Inmates, having the court's sympathy, may thinkthat the ultimate arbiter of the disciplinary processis the court and not the prison officials. Conse-quently inmate discipline as well as staff moralemay decline substantially.

We shall examine below the extent to which thesedetrimental effects were experienced at the RhodeIsland Adult Correctional Institution after theentry of Judge Pettine's decree in Morris. Inaddition, we shall consider the difficulties ofinsuring compliance with a judicial decree-a taskwhich may require extensive judicial supervision.Given the present overcrowding of court dockets,and the limitations on judicial time, one must askwhether such court supervision is an efficient oreven practicable expenditure of judicial resources.

EI. TH Morris CASE Am E RHODE IsrLADCoRRECTIoNAL INSTITUTION-THE SETTING

The litigation in the case of Morris v. Travisono s

grew out of a request by inmate Morris for in-vestigation of conditions at the Behavior ControlUnit (BCU)6 in the Adult Correctional Institution(ACI), where he was incarcerated. As a result ofthat investigation, Rhode Island Legal Servicesattorneys applied to Judge Pettine for immediaterelief for twenty-four inmates, who had beenconfined to the BCU primarily because they hadparticipated in an inmate strike, and who were, itwas alleged in the complaint, living in conditions sopolluted with filth, rotten food, and human ex-crement as to be a severe health hazard. After ob-taining an agreement which resulted in the removalof the immediate health hazard,2 Rhode Island

43 Sostre v. McGinnis, 442 F.2d 178, 197 (2d Cir.1971), cert. denied, -U.S.- (1972).

4See Kimball & Newman, supra note 5, at 4.45310 F. Supp. 857 (D.R.I. 1970).46 The BCU is a detention facility segregated from

the rest of the Rhode Island institution.47310 F. Supp. at 858.

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Legal Services amended and expanded theircomplaint so that it constituted a broad attackupon the disciplinary procedures at the ACI.4

Finally, after weeks of negotiation by the partiesand consideration by the court, a consent decreewas entered by Judge Pettine based on a proposeddraft of "Regulations Governing Disciplinary andClassification Procedures" submitted and agreedto by the parties.4 9

The ACI is the only prison in the State of RhodeIsland for adult male convicts, both short-termand long-term offenders. It is comprised of aMaximum Custody Facility, Medium and Mini-mum Custody Facility, Admission and OrientationUnit, Awaiting Trial Unit, and the Work ReleaseUnit. 50 Judge Pettine's order applied to all inmatesincarcerated after conviction, that is, to all butthose in the Awaiting Trial Unit. 51 Approximately360 inmates are affected by the order at anyone time.

III. FINDINGS-THE PROCEDURAL MODEL

judge Pettine's consent decree was aimed atinsuring fairness in the plison's disciplinaryproceedings' 2 by establishing a variety of proce-dural safeguards. This "procedural due process" "1

41 The amended complaint was filed as a class actionon behalf of all the prisoners at ACI and a sub-classaction on behalf of those inmates in the BCU.

49 Prior to entering the consent decree, the courtheard the views of a number of inmates in court,distributed to all inmates a copy of the proposedprocedures and provided opportunity for response-the court received 113 responses out of an inmatepopulation of approximately 360-and consultedpenologists with national experience. The court thenentered its decision giving "due weight to the justifiablecriticisms of the plaintiff class, to the very real interestsof the defendant prison administration in an orderedprison environment, and to the commentary receivedfrom the aforementioned penologists." 310 F. Supp. at860. The court retained jurisdiction for eighteenmonths, which period Judge Pettine felt would "allowthe parties to get into a working scheme of enforcementof the Regulations but [would] also permit enoughflexibility for necessary rule changes." Id. at 862.

"0 ANNUAL REPORT: ADULT CORREcTIONAL INSTITU-TIONS, RHODE ISLAND 1 (July 1, 1970) [hereinaftercited as ANNUAL REPORT].

51310 F. Supp. at 864.Two sets of disciplinary proceedings are held each

week at ACI-one for those inmates in the medium-minimum section, and the other, for the maximumsecurity prisoners.

53The procedures needed to provide "due process" or"fairness" vary from case to case:

'Due process' is an elusive concept. Its exactboundaries are undefinable, and its content variesaccording to specific factual contexts .... Whetherthe Constitution requires that a particular rightobtain in a specific proceeding depends upon acomplexity of factors. The nature of the allegedright involved, the nature of the proceeding, and

approach is one which many courts have taken inattempting to balance the need for administrativediscretion with the individual's right to protect his

interests from governmental interference." Inthis section, we shall examine the AMorris order's

major procedural provisions and, with respect toeach of them, consider the following questions:

1. What was the situation at the ACI with re-gard to the particular problem prior to theentry of the order?

2. What weie the explicit provisions of theorder which were designed to meet theparticular problem area?

3. What effect did the pertinent provision of theorder have? To what extent was the provisionimplemented?

4. Could the specific provision have been im-proved to better meet this problem area?

5. What alternative means are available to dealwith the problem?°

A. Notice of the Charges

For the initiation of the disciplinary proceedings,the order requires that an inmate violation reportbe completed which details the alleged violation,and that both oral and written notice be given tothe inmate of the disciplinary infraction with whichhe is charged. Notice is required, apparently notonly to establish the precise nature of the offenseand to inform the inmate fully of the charges, butalso to give him an opportunity to prepare adefense.

5

These notice provisions met with substantial

compliance." The violation report form serves asthe foundation for the entire proceeding and was

almost always filled out.' 7 In the vast majority of

the possible burden on that proceeding, are allconsiderations which must be taken into account.

Hannah v. Larche, 363 U.S. 420, 442 (1960).54See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970);

In re Gault, 387 U.S. 1 (1967); Dixon v. AlabamaState Bd. of Educ., 294 F.2d 150 (5th Cir. 1961).

5 The indictment serves similar purposes in criminalproceedings, while serving to avoid double jeopardy.See, e.g., Russell v. United States, 369 U.S. 749 (1962).Notice is also a fundamental requisite for civil pro-ceedings. See Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306 (1950).

56 This was not really a new requirement. Thispractice was and is known at the ACI as "the book."Putting a man on "the book" (i.e., charging an inmatewith a disciplinary infraction) has for many yearsentailed filling out a form with substantially the sameinformation as that required by the order.

"In only one case, involving two work-releaseinmates, was non-compliance observed. However, theDisciplinary Board dismissed that case because of theinvalid procedure.

[Vol. 63

JUDICIAL INTERVENTION IN .PRISON DISCIPLINE

cases, oral notice was given the inmate when hewas booked." Written notice consisted of a copy ofthe violation report form, and, when given,59 waspresented to the inmate by the classificationcounselor,60 usually on the day following thebooking.

The notice, especially the description of thealleged violation, was generally very cursory. Thecharge was stated, but the circumstances sur-rounding the incident were rarely given.6 Nameswere often misspelled, the writing sometimes il-legible,u and the continuation of a single incidentwas often written up on two or three separateforms as distinct charges3 with the times ofinfractions only minutes apart. Any or all of thesefactors could contribute to the inmate's confusionabout the charges against him.

There is little question that notice is essential toa fair disciplinary proceeding, both to inform theinmate of the nature of the charges against himand to establish a basis for the subsequent pro-ceedings. Although these provisions required asubstantial amount of paperwork, there was littlestaff antagonism, probably because most of thework was already required at the ACT. However,the substance of the notice was, at times, insuf-ficient," which seems to indicate the necessity for

Is A common exception to this practice was thatnotice was rarely given to those booked for intoxicationuntil the next day, on the theory that at the time of thebookings these inmates were not capable of compre-hending why they were charged.

59 While the study's observers had the impressionfrom monitoring the hearings that written notice wasgenerally given, of fourteen interview respondentsdisciplined after the order, eight said that they had notreceived any written notice. Although we have noevidence either to support or refute those particularrespondents, our feeling is that their answers are notrepresentative of the practice employed at the ACI.However, those eight answers may reflect a failure onthe inmate's part to understand the notice actuallygiven or may result from the insufficiency of the noticeitself.

60 For a discussion and analysis of the classificationcounselor's role, see note 78 infra.

61 This violation record is crucial, not only for theinmate's information but because the violation reportform serves as the basis for the entire disciplinaryproceeding. Since, as will be discussed, the subsequentprocess of gathering evidence is rather summary,failure to record all of the relevant circumstances atthe time of the initial charge may mean that they willnever receive proper consideration.

12 In the few cases involving illegible handwriting,the charges were dismissed.

' The presence of numerous disciplinary reports inan inmate's file may affect the future disciplinarydeterminations, or even his chances for parole.

Some of the difficulty and time may be minimizedby careful design of the form. An experimental revisionof the ACI form was designed as a result of this study.

staff training in filling out the forms6" and com-municating its contents to the inmates. Theinmate violation report form should give as muchdetail as possible about the circumstances sur-rounding the alleged violation, and those staffmembers responsible for giving notice to theinmate should carefully explain the charges to him,see that he understands them, and advise theinmate to keep a copy of the violation report formfor reference. In addition, all charges arising out ofa single incident should be noted in the samereport form.

These recommendations should make the reportforms more useful for administrative purposes andmore informative to the inmates. Any added workmay create some staff resistance, but it should bepossible to overcome this by a well-planned trainingprogram.

66

B. Prehearing Detention

One of the primary objectives of the new regu-lations was to limit the use of inmate detentionprior to a Disciplinary Board hearing to exceptionalcases only, with such detention conducted in a"non-punitive" manner. However, the lack ofclarity in defining an "exceptional" case fosteredabuse of that basic objective.7 The followingdescription of one monitored case may illustratemore vividly the problems of prehearing detention,and the confusion in the order on this topic.

An inmate came before the Disciplinary Boardhaving been booked for three separate offenses.

65The staff training aimed at implementing theMorris decree was negligible-generally, limited todistribution of the decree to all staff members alongwith instructions to read it.

66 As in all areas of institutional reform, the reasonsand the necessity for the increased investigatoryinformation report requirement must be carefullyexplained to the guards.

61The rules concerning pre-hearing detention areunclear in several respects. (1) They are confusing asto whom may authorize prehearing detention-officer,superior officer, or superior officer with immediate sub-sequent review. (2) They are confusing as to the nec-essary criteria for imposing pre-hearing detention. Oneprovision provides that inmates may be detained "toavoid grave assault or serious disorder"; the "emergency"provisions of the rules suggest that there may be a tem-porary reassignment of the inmate only when there is animmediale threat to the security or safety of the prisonas a result of an inmate's serious wrongdoing; whilestill another provision suggests that "lock-ups" may beappropriate when a threat to order or safety exists as aresult of the alleged violation. (3) They do not providestandards for judging whether these criteria exist in aparticular case. (4) They do not specify the conditionsof the prehearing detention. (5) They are not explicitas to when the specific factual findings leading to thelock-up must be recorded and reviewed.


The first was that he had left his work area withoutauthority after the officer in charge had refused togive him a pass to attend his education class afterthe inmate had been rude to the officer. Theinmate then was "locked-up" in his cell, pending aDisciplinary Board hearing of his case. This"lock-up" was ordered by the superior officer whohad investigated the violation. On the DisciplineReport Form, the superior officer's investigationsaid in pertinent part: "[the inmate] ... has a verynegative attitude; he is going to contest hisrights...."

While locked up pending hearing on the chargeof leaving the work area without authorization,the inmate received two more bookings: one forplaying a guitar in his cell and another for threat-ening the officer who told him to stop playing hisguitar. Finally, sixteen days after the originalcharge, the three charges were presented to theDisciplinary Board. On the original charge, theinmate was found guilty and reprimanded, but itwas said that the time he spent locked up in hiscell was sufficient punishment for his misconduct.Therefore, with respect to that offense, he wasreturned to normal status. The inmate was thenasked what he wished to do about the other twocharges which were read to him. The inmate saidthat they were without foundation. The DeputyWarden noted that the officers who made thecharges were on vacation, and asked the inmate ifhe wanted the charges heard anyway. [This wouldmean pleading guilty. When the inmate contests acharge, the "booking" officer is called into thedisciplinary board meeting to "verify" the facts.With the officers absent, the case would have to bepostponed until the officers returned. The inmatewas not aware of this administrative practice, onewhich is not provided for in the order.]

The inmate, somewhat confused, commentedagain that the "charges were trumped up" andresponded that he would wait until the officersreturned to have the charges heard by the Board.The immediate reply by the Deputy Wardenwithout any consideration with the other membersof the Board was, "All right, you will return to yourcell and remain locked up until the officers return."

The inmate left confused and embittered. Hehad chosen to postpone the hearings because theofficers were not present and the Deputy Wardenhad just finished telling him he would return tonormal status. Now he was to remain locked upwith no idea as to when the Disciplinary Boardwould have a hearing on the other two charges.

In locking up the inmate, the superior officerwas acting presumably pursuant to provisionII.H. of the court order:

H. Only a superior officer shall have authority toorder an inmate locked up pending a DisciplinaryBoard hearing. If this is done, it must not be inaccordance with punitive segregation regula-tions....

This provision includes no explicit criteria for whena superior officer can exercise this discretion.However, in provision I.E., there is brief mentionof such criteria for "locking up" a prisoner:

E. When a threat to order or safety is, in an officer'sopinion, present as a result of the alleged violation, asuperior officer shall determine whether the in-mate should be released or held pending furtherinvestigation. (Emphasis added)

As a result of this lock-up, the inmate is confinedto his cell with his work eligibility suspended.However, it should be noted that under the emer-gency or temporary provisions of the rules, therequirements for such reassignments are expressedin more stringent terms than the requirements forlock-up pending a Disciplinary Board hearing:

When faced with an immediate threat to the se-curity or safety of the ACI or any of its employeesor inmates, officials of the institution may tem-porarily reassign inmates in accordance with thefollowing regulations:I. Reassignment by a correctional officer on ap-

proval of his immediate supervisor:A. When a correctional officer or other employee

witnesses an inmate commit a serious wrongdoing .... (emphasis added)

In addition to the "immediate threat" and"serious wrong doing" requirements, unlike thesituation in "lock-ups," a written record of thereassigment must be forwarded to the Warden andthe Deputy Warden for approval or disapproval.Furthermore, such reassignments are to be re-viewed at the next sitting of the ClassificationBoard, which is to take place not longer than oneweek from the date of the reassignment. No suchreview is required for regular lock-ups. Therefore,although it appears that "lock-up pending adisciplinary board hearing" and "temporaryreassignments" under the emergency provisionsof the rules result in the same segregation (i.e.,confinement to cell) and treatment of the inmate(with the possible exception that under the emer-

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gency temporary reassignment an inmate canconceivably be placed in punitive segregationwhile this is not permitted under the "lock-up"provisions), lock-up can be effected withoutmeeting the emergency requirements of immediatethreat to the safety or security of the ACI andwithout the subsequent review necessary fortemporary reassignment.

This confusion in the regulations may accountin part for the fact that, contrary to the apparentintention of the consent decree, the incidence ofprehearing detentions after the entry of the decreeremained about the same as it had been before.,,Perhaps another reason is that such detention mayreally be necessary in many cases. While theregulation's standards were somewhat unclear, it isapparent that the main purpose of prehearingdetention is to segregate the inmate from the restof the population when it appears that the allegedviolation makes him a threat to himself, to others,or to the security of the institution. 9 In the contextof a prison setting, with its close quarters andsubstantial numbers of people with previoushistories of violence, it is very possible that almostany irregular incident can be seen as a likely threatand a potential spark to serious disturbances.Certainly, the prediction of future trouble, even inthe relatively immediate future, is highly specu-lative,70 but overprediction in the prison setting,and therefore overdetention, might be more

0 The study's findings in this respect, based on areview of 460 disciplinary records, revealed that priorto the decree 57% of the inmates charged were detainedprior to receiving a hearing and that after the decree51% were so detained. Similarly, based on interviewswith a sample of 26 inmates, the findings showed thatbefore the decree 85% received prehearing detentionand after the consent decree 77% were detained before ahearing. Analysis of the hearings actually monitoredby our observers (all after the decree) also revealed ahigh proportion of prehearing detentions-in 38 of the58 cases observed (65%).

69 Contrast this purpose with that of pretrial deten-tion in non-prison society, which is ostensibly to assurethe defendant's presence for trial. The "threat"criterion in the prison setting is more like the "dan-gerousness" standard which has been advocated forpreventive detention and which some say is the realbasis of the present detentions under the bail system.See, e.g., Foote, The Coming Constitutional Crisis inBail, 113-U. PA. L. R1v. 960 (1965); Comment, Pre-ventive Detention: An Empirical Analysis, 6 HARv.Civ. RsioTs-Civ. LIB. L. REv. 289 (1971); Comment,Pretrial Detention in the District of Columbia: A Com-mon Law Approach, 62 J. Caum. L.C. & P.S. 194, 199,203 (1971). Packer, Two Models of tle Criminal Proc-ess, 113 U. PA. L. REV. 1, 39-44 (1964).70 See Comment Preventive Detention: An EmpiricalAnalysis, supra note 69 at 324-32.

justified than on the outside because of the po-tentially volatile nature of penal institutions.

This does not mean, however, that there shouldbe no limits on prehearing detention. The nature ofthe threat and the reason for detention should beclearly specified in writing and such detentionsshould be subject to immediate review. In ad-dition, the nature of the confinement should be asdose to normal incarceration as possiblen and thedisciplinary hearing on the alleged infractionshould be held as soon as possibleY2 If the inmate'sthreat to the institution has abated, he should bereleased pending his hearing. Moreover, in dis-posing of the alleged violations, the DisciplinaryBoard should consider any time spent in detentionprior to the hearing.73 Staff training as to whenprehearing detention should be invoked and inwhat manner is crucial.

C. Superior O~icer's Investigation

The superior officer's investigation 74 is anotherimportant aspect of the decree; the DisciplinaryBoard relies heavily on it in its consideration ofthe caseY5 Our study revealed that the superior

7 1 The study found that most inmates detained priorto hearing were locked up in their own cells. Of the 31monitored cases involving prehearing detention onwhich there was information concerning the place ofdetention, in 22 of them (71%), the inmate had beendetained in his own cell. Other locations included thefollowing: admission and orientation cell (3); hospitalcell, a form of punitive segregation (2); cell block inmedium-minimum (2); hole, a form of segregation (1);unemployed, locked up in own cell, but only duringday (1).

721n order to reduce the hardship of prehearingdetention, the hearings should normally be held withinone day of the initial charge. Weekends and holidaysmay necessitate a forty-eight hour delay. The studyfound that prehearing detentions were usually for aconsiderably longer period of time, although after theconsent decree the detention period slightly decreased.Besides the fact that there was not a general decreasein the length of prehearing detention after the entry ofthe decree, there were still postderee cases in whichthe detention prior to hearing was more than one week.

,3 The study revealed that the Disciplinary Boardat the ACI did consider the prehearing detention intheir dispositions in a large number of cases. In 43% ofthe cases prior to the decree the Board consideredprehearing detention as punishment; after the decree,25% were considered as punishment.

74 Of the approximately 152 correctional officers atthe ACI, 17 of them are superior officers (six captainsand eleven lieutenants). Above them are the two deputywardens, each of whom has responsibility for one of thetwo facilities-maximum and medium-minimum. Thedeputy wardens preside at the disciplinary meetings.Their immediate superior is the assistant warden.

75Many penal institutions rely heavily on theinvestigative process for fact-finding, while the boardhearings are more dispositional in nature. This alloca-

19721


officer's investigation was in most cases quitesummary and the reports often very inadequate.7 6

In many incidents there were no witnesses, buteven in those in which there were, rarely wasanyone except the charging officer and the inmateinterviewed. In most cases, the summary of theinvestigation amounted to one sentence stating

either whether the inmate admitted the offense orwhether the superior officer thought the inmate wasguilty. In addition, the superior officer frequently

gave his opinion (usually negative) of the inmate'sattitude, and, in a few cases, he gave his view of theproper sentence. The superior officer's reportseldom shed any light on the facts of the incidentitself or the circumstances surrounding it. The

inadequacy of the reports is probably due to anumber of reasons: a lack of training regarding thesignificance of these investigations, a resistance toadditional paper work, and, perhaps most im-portant, a feeling that theie is no need for more,since the Board has generally found these quitesummary reports sufficient for its purposes. Thecursory nature of the superior officer's investi-gation is a corollary to the subsequent de-emphasisof the fact-finding process by the DisciplinaryBoard.7

D. Representation

The Morris decree mandated classificationcounselors as the representatives of the inmate atthe Disciplinary Board hearingYs The decree makesthe counselor responsible for transmitting thewritten notice of the chaiges and hearing to the

tion of trial functions is more like that of the civil lawcountries than of our criminal process, which, intheory at least, concentrates the fact-finding functionat the trial stage. Cf. Clutchette v. Procunier, 328 F.Supp. 767, 774 (N.D. Cal 1971) ("Most of the timespent by the [disciplinary] committee in deliberation isdevoted to directing what disposition to take ratherthan ascertaining guilt or innocence").7 6 In almost all cases the space on the form for thesuperior officer's report was filled in, although therewere some forms in which that space was left blank.

77 See text accompanying note 106 infra for a de-tailed discussion of the de-emphasis of the fact-findingprocess.7

8 The classification counselor is the social worker ofthe ACI. At the time of the study there were fourclassification counselors, only three of whom wereresponsible for "counseling." Because of other admini-strative responsibilities, these men spend a relativelysmall amount of their time actually counseling in-mates. Since the time of the study, the classificationdepartment has been expanded somewhat, but notsufficiently so that the counselors can perform the"garbage details" and still adequately counsel theinmates.

inmate, for informing the inmate of his right tohave a counselor assist him at the hearing, and forassisting the inmate on appeal if he is dissatisfiedwith the Board's decisionY9

The experience at the ACI in making the cor-rectional staff responsible for serving as inmates'advocates in disciplinary proceedings is instructive.At the hearings themselves, classification coun-selors generally seemed to play an extremelylimited role. This might be due to the fact thatthe defense was usually an outright denial, andthe result often rested on the question of credi-bility, the officer's against the inmate's. Usuallythough, the counselors were reluctant to becomeardent advocates for inmates in the disciplinaryhearings. Our staff interviews indicated that thereason for this reluctance was the conflict they feltbetween their role as advocate for the inmates andtheir role as a member of the prison staff:

There's a basic conflict-we are caught betweenthe inmate and the rest of the staff. If we win acase for him, the staff resents it; if we lose, he re-sents us.

There is also a problem in that the counselor isresented by the staff when an inmate he repre-sented at a disciplinary board hearing is found notguilty.

Classification Counselors are confused as to howthey should act. They are required to be somethingbetween a lawyer and a social worker.

At the same time, almost all the inmates in theinterview sample said they were dissatisfied withthe counselor's representation at the hearingPs

79The following percentages, based on interviewresponses of a sample of 14 inmates, describe the extentto which the classification counselor (CC) was usedas a representative after the entry of the decree: Toldof right to CC (72%); Requested CC (57%); CCpresent at hearing (83%); Told of right to CC onappeal (50%); Requested CC on appeal (58%).

8°The most common reasons given for this dis-satisfaction were that the counselor "didn't do any-thing" or was "no help." One inmate complained thathe didn't see the counselor before the hearing andanother, perhaps reflecting the counselor's dual role,said that the counselor had helped to put the blame onhim.

Of course, dissatisfaction with counsel is commonthroughout the criminal process, even among de-fendants having privately retained counsel. But thedissatisfaction is almost assured when counsel is seenas part of the disciplining system. This was especiallytrue at the ACI, where the effect of the consent decreewas not only to make the counselor an advocate, butalso to put him on the Disciplinary Board. The decreerequired that a member of the treatment staff be onthe board: classification counselors comprised the bulk

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An alternative to using correctional staff forrepresentational purposes might be to use outsidecounsel,"' but this, also, presents a number ofproblems. Outsiders, especially those assumingan adversary role, are often viewed with hostilityand suspicion by the staff. Their "interference"in prison affairs is resented, and they are seen as athreat by the staff, who fear any undermining oftheir authority and the possibility of civil liabilitysuits against them.P These fears might lead the

of treatment personnel, and they were selected. Thisput the counselor in conflicting roles, a conflict whichthe counseling staff has sought to avoid by petitioningJudge Pettine for a change in the decree. In theirpetition, dated October 1, 1970, the ClassificationDepartment staff articulated these problems:

The issue at hand is a fundamental one in ourrole as counselors. Simply stated, whenever aClassification Counselor sits in judgment of aninmate (as he does when sitting on an institu-tional Disciplinary Board), the counselor is put inthe position of jeopardizing his relationship withinmates and decreasing the possibility of effectingpositive change in behavior on the part of inmates,e.g., if a counselor sits on a Disciplinary Boardwhich sends one of his inmate counselees to segre-gation for five days, the possibility of the counselorafterwards establishing or continuing a meaningfulrelationship in terms of helping the inmate achievepositive behavioral change is practically nil.

The effect of the counselor's sitting on the Disci-plinary Board extends beyond those cases whichinvolve an inmate who is part of that particularcounselor's caseload. The mere fact of the coun-selor's presence on the Board puts him in the roleof disciplinarian which is antithetical to his roleof counselor. We feel this issue is too critical to beresolved by characterizing Classification Counselorsas individuals who must function in many roles,some of which are in conflict with others.81 While the right to counsel has been extended to

any "critical" stage of the criminal process, see, e.g.,White v. Maryland, 373 U.S. 59 (1963) (preliminaryhearing before magistrate); it has not as yet beendearly applied to the peno-correctional process; Hamil-ton v. Alabama, 368 U.S. 52 (1961) (arraignment).Compare Mempa v. Rhay, 389 U.S. 128 (1967) (proba-tion-deferred sentencing proceeding) with Hyser v.Reed, 318 F.2d 225 (D.C. Cir. 1969) (parole revocationhearing). But see Clutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971) (right to counsel forprison disciplinary proceedings when offense could alsoresult in criminal charges). See generally Cohen,Sentencing, Probation, and the Rehabilitative Ideal: TheView from Mempa v. Rhay, 47 TEx. L. REv. 1 (1968);Kadish, The Advocate and the Expert Counsel in thePeno-Correctional Process, 45 MrqN. L. REv. 803(1961).

6242 U.S.C. § 1983 (1970), a part of the Civil RightsAct of 1871, makes anyone acting under color of statelaw, who deprives another citizen of a right, privilege orimmunity secured by the Constitution, liable at law, inequity or other proper proceeding. This section hasalready been the basis for a major portion of prisoners'suits against prison officials. See Note, Prisoners'Rights Under Section 1983, 57 GEo. L. J. 1270 (1969).

staff to bypass the formal disciplinary process,where they would be subjected to counsel's in-vestigation and interrogation, either by discipliningthe inmates informally or by ignoring infractionsof the prison rulesPn Outside counsel is also resistedbecause of a fear that Board pioceedings will betransformed into criminal trials. A number of staffmembers felt that the decree already went too farin that respect:

The fallacy is in instituting court procedures in theACI hearings. We are not a court.... There aretoo many confusing technicalities in the order.

The entire order is wrong as to discipline. Thesystem should not be so formal. The average in-mate is glad to get his court appearance over. Hecan then relax and do his time. However, with thenew system, it is like he is always going back tocourt. The average inmate doesn't want to botherwith such a formal systemM

Moreover, if retained counsel were permitted,equal protection problems would be raised re-garding indigent inmates who could not affordsuch counsel s5 Finally, given the institutionalde-emphasis on the entire fact-finding process,legal representation at Board hearings may not infact be necessary in all disciplinary cases. Toprovide for such legal representation in particularcases8 6 would be tantamount to refocusing thedisciplinary inquiry.

E. Disciplinary Hearing-The Disciplinary Board

1. Conposition of the Board. The Morris decreerequired that the Disciplinary Boards in both themaximum and medium-minimum security in-

For a discussion of staff practice of bypassing theformal disciplinary process, see note 155 infra andaccompanying text.

84 The judicialization of disciplinary procedures wascriticized by some of the staff not only because of thecomplexity of the rules or because it might bring someof the court's problems, such as judicial backlog, to theinstitution, but also because there was a feeling, asone staff member said, that, "the decree is directedtoward punishment" rather than rehabilitation.

85 For applications of the equal protection clause inother criminal contexts, see Griffin v. Illinois, 351U.S. 12 (1956); Douglas v. California, 372 U.S. 353(1963). In Earnest v. Willingham, 406 F.2d 681 (10thCir. 1969), the court recognized that if retained counselwere permitted by statute to be present at parolerevocation hearings, then indigents must also be givenappointed counsel.

16In Clutchette v. Procunier, 328 F. Supp. 767(N.D. Cal. 1971), the court required that counsel begiven to prisoners accused of an offense which couldresult in criminal penalties.


stitutions have three members, consisting of theDeputy Warden of the particular facility and twomembers "selected from the custody and treat-ment departments." This provision was inter-preted as requiring one member from custody andone from treatment, and these requirements werealmost always met.87

The compositional provision of the decree wassubjected to substantial criticism by both staff andinmates. The staff problem of having to use classi-fication counselors (who were also supposed torepresent inmates) on the Board to meet thetreatment member requirement, has already beendiscussed.P On the other hand, the inmates simplyfelt that the Board was unfairly constituted. Inciting the composition of the Board as the mostunfair aspect of the disciplinary process at theACI,9 the inmates characterized the board as a"kangaroo court" and a "biased board" whichdid not "know how to be fair." They alleged thatthe Board members held "grudges" and showedfavoritism, and they particularly criticized thepresence of guards on the Board 0 as well as theabsence of blacks, in alleging racial prejudice.

The impartiality of the Disciplinary Board maybe impeded by several factors. In a small, dosedinstitution like the ACI, staff members are familiarwith many of the inmates and usually bring to theBoard hearings a great deal of personal knowledgeabout a particular inmate and sometimes bias,either favorable or unfavorable, toward him. Theresult often is that the disciplinary decision is madeon the basis of the personal and usually unarticu-

17 The decree was not interpreted as requiring thesame three people for every Board hearing. Therefore,the custodial position was filled by any number ofguards and superior officers. Similarly, while thetreatment position was usually assumed by a classifica-tion counselor, there were times when a male nurse,teacher, or shop instructor served in that capacity.The Deputy Warden was almost always present; in hisabsence, the captain-the highest ranking correctionalofficer-presided over the meeting.

81 See note 78 supra.19 Inmates in the interview sample who had been

disciplined were asked whether they felt the disciplinaryproceeding was fair. If they responded that it was un-fair, the inmates were asked the following questions:what was unfair about this proceeding? In general, howcan disciplinary proceedings be changed to make themfairer? In response to these questions, the compositionof the Board was cited most frequently as an unfairaspect of the disciplinary process.90 Often more than three staff members participated

on the Board. On these occasions, the additionalpersonnel was usually from the custodial staff. Attimes, this gave a marked custodial tone to the Disci-plinary Board hearing.

lated feelings of a staff member, rather than onthe facts presented at the hearing.9'

Board members may not act impartially becausethey feel that their duty is to support the staff inall cases. As one Board member put it, "Thephilosophy in the past has been always back upyour officers, whether they are right or wrong."Such a view is particularly harmful to the integrityof the disciplinary process, when, as in most con-tested hearings, the evidence consists mainly ofconflicting testimony by the prisoner and a staffmember.

Another factor which may affect the dispositionof the case is the inmate's behavior before theBoard. An inmate who is "defiant" or had a"hard attitude" or insists on his "rights" is un-likely to win the sympathy of the Board.

These factors affecting the Board's decisions-personal knowledge of, and sometimes bias toward,the inmate defendant, tendency to support staff,and reaction to inmate attitude before theBoard"'-combine to make the prison disciplinaryprocess something less than a hearing before

51 One observed case, for example, presented thefollowing scenario:

The inmate was charged with refusing to work.Before the inmate was brought into the hearingroom, a custodial officer on the board said: "Theseguys cause problems. They don't want to work. Irecommend B.C.U.... I want to say this beforethey come in .... They defy every rule." Theinmate was then brought in, and was subsequentlyconfined to his cell except for meals and referredto the Classification Board for reclassification to alower status. In the observer's opinion the pre-hearing conversation had definitely been pre-judicial to the inmate.In another case, a Board member's favorable view

of the inmate helped him:After the inmate had conceded guilt and had

left the room, the chairman said: "... [He] has ashot at parole next month, and I don't want tomess him up... I don't want to foul up hisvisits [either], because he gets a lot of good out ofthem." The inmate was deprived of five days'pay [a rather nominal penalty considering thatnon-work-release inmates at ACI earn a maxi-mum of one dollar per day].Also, in a rather paradoxical turn of events, inmates

branded as "trouble-makers" may be treated moreleniently precisely because of their troublesome nature.Prior to one set of cases, the chairman made thefollowing comment:

Look, these guys are searching for some way ofcausing trouble. Let's follow the rules to the letterand go as easy as possible on them so they havenothing to protest about to the court.92 David Ward's study of inmate discipline in a

federal prison found these same factors at work in theirboard proceedings. D.A. Ward, Prison Rule Enforce-ment and Changing Organization Goals (unpublishedthesis) (1960).

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impartial arbiters based only upon evidence andargument in open court.93

It may be that some of these problems could besolved by changing the composition of the Board.94

The inmates interviewed had numerous suggestionsfor such changes: an inmate jury, one inmate onthe Board, the same people on every Board, theWarden or Assistant Warden on the Board, fewerguards present, and outsiders on the Board. How-ever, with the possible exception of including anoutsider, these proposals do not seem designed tocreate a more impartial Board. It is difficult to seehow a change among prison staff would improvematters, since almost all prison personnel havepersonal knowledge of many of the inmates andare subject to similar pressures with regard -tostaff support. Even adding inmates to the Boardwould not remedy the problem of personal knowl-edge and possible bias toward the charged pris-oners. While the use of an outsider would solve thatdifficulty (at least temporarily, i.e., until he getsto know the inmates), such a move would create awhole variety of problems, some of which havealready been referred to in connection with therepresentation issue,95 and others of which will bediscussed in more detail below.96

2. Jurisdiction of the Board. The Morris decreestated that "[only] a duly authorized DisciplinaryBoard has the power to issue punishment toinmates... .,7 The question remains, which inmateactions are subject to punishment? While theprison has no comprehensive set of rules which

13Patterson v. Colorado, 205 U.S. 454, 462, (1906)(Holmes, J.). Cf. Irvin v. Dowd, 366 U.S. 717, 722-23(1961):

It is not required... that the jurors be totallyignorant of the facts and issues involved.... It issufficient if the juror can lay aside his impression oropinion and render a verdict based on the evidencepresented in court.9 At a minimum, custodial personnel witnessing or

charging the inmate with the alleged infraction shoulddisqualify themselves. See Bundy v. Cannon, 328 F.Supp. 165 (D. Md. 1971) (official was instrumental inpressing charges against an inmate and did not dis-qualify himself from Disciplinary Board, held violationof fourteenth amendment due process).

95 ee note 81 supra.99See note 162 infra. See also Bundy v. Cannon,

328 F. Supp. 165 (D. Md. 1971), where the courtissued regulations similar in scope to those included inthe Morris decree and required that the DisciplinaryBoard include a hearing examiner from the office of theCommissioner of the Department of Corrections.

97However, the decree also provided that an officeror employee observing minor violations should handlesuch incidents tactfully and firmly by warning andcounseling. 310 F. Supp. at 871 (1970).

outline the boundaries of permissible conduct,"there are many regulations concerning such mattersas mail, headcounts, searches, card playing andgambling, institutional property, television useand personal hygiene, as well as numerous otheractivities and forms of conduct.9 9 These rules,printed in the Inmate Guide, outline many types ofconduct for which prisoners might be punished.The study's examination of disciplinary records,observations of hearings, and interviews withinmates revealed a broad range of behavior forwhich the prisoners were subject to disciplinaryboard action, as seen in Table 1.100

The most frequent pattern of misbehaviorinvolved trouble with the guards and staff, forexample, arguing with the cook, not telling theguard that someone was out of his cell, or threat-ening the officer. Almost always, verbal abuse ofan officer by an inmate resulted from an inmate'sfeeling that his rights or privileges had been deniedin some way. Only rarely did the inmate go so faras to threaten the guard with physical harm, andonly once or twice did an inmate actually threatena guard with a weapon. Typically, then, there wasno real direct threat of physical harm in theinmate's action, nor was there any real physicaldanger to the institution or its personnel. Basically,

91 In the preface to the Inmate Guide, prisoners aretold:

We purposefully have refrained from listing aseries of 'do's' and 'dont's' because we know noone answer covers all situations or circumstances.If you enter into the spirit of this guide yourmistakes will be minimal and life here will bebetter for others because you have helped to makeit that way.

Inmate Guide, Adult Correctional Institutions, RhodeIsland, (August 15, 1965; revised March 1, 1967).

91 Other regulated conduct includes smoking, read-ing, "horseplay," betting, offensive speech, bobbies andunnecessary movement during headcounts. Inmatesare required to obey orders of an employee in a coopera-tive manner and submit to searches of their persons orquarters. Id. at 18-20. This partial list of regulationssupports the view that because "life in the ordinaryprison has to be lived wholly within walls," few inmatefunctions are not regulated. Grosser, External Settingand Internal Rdations of the Prison, in Plisox WITHINSocrETv 15 (L. Hazelrigg ed. 1968).

100 Tn using the tables which follow, one mustremember that in a few instances the same incidentmay occur in more than one sample. Ward's studyindicated similar distributions of infractions: Insolence(203 cases) (14%); Refusing to work and to obeydirect orders (247) (18%); Fighting (186) (13%);Contraband (366) (25%); Group Assault, Creating aDisturbance (65) (4%); Sex, Race, Attempted Escape,Assaulting an officer (61) (4%); Violation of MovementRegulations (78) (5%); other (Gambling, Poor WorkReport, Miscellaneous) (99) (7%). Ward, supra note92, at 109.

1972]


TABLE ITYPES OF MISCONDUCT FOR WHICH INMUTES ARE BROUGHT BEFORE THE DISCIPLINARY BOARD

Number of Incidents in Each Sample

Type of Misconduct Total PercentageRecord Monitored InterviewSample Sample Sample

Trouble w. Guard & Staff ............. 141 9 10 160 25%Fight/Assault & Battery .............. 81 11 8 100 16%Refusals ............................ 65 17 5 87 14%Use and/or Possession of Alcohol, Drugs. 35 12 2 49 8%Poss. of Prohibited Articles ............ 36 4 5 45 7%Creating a Disturbance ............... 41 2 2 45 7%Escape ............................. 36 4 4 44 7%Destruction of State Property ......... 25 1 26 4%Out of Place ......................... 21 1 2- 24 4%Throwing Food Out of Cell ........... 14 14 2%Talking When Not Permitted ......... 9 1 2 12 2%Carrying a Protest Sign ............... 5 5 1%Fire in Cell .......................... 3 1 4 1%Larceny of Table .................... 2 1 3Violating Security Rules .............. 2 2Sharing Bed With Another Inmate ..... 2 2 2%Strike .............................. 2 2Suspicion in Stabbing Case, General

Suspicion ......................... 2 2Shaving Head ....................... 2 2Making a Bomb ..................... 1 1Cutting W rist ....................... 1

Total Infractions .................... 630 100%

in these situations the inmate failed to obey anofficer's or staff member's order, or, perhaps whileobeying the order, would complain somewhatabusively about it. For this the inmate was pun-ished, almost always without regard to the sub-stance and validity of the staff member's order.

Other offenses have similar characteristics."Refusals" include: refusing to do a certain job orrefusing to give up cigarettes where they were notallowed. There is usually little inquiry as to whetheran inmate's refusal was justified.'

101 The following situations are examples of suchpractices: One inmate, brought before the DisciplinaryBoard for refusing to -perform a loading job, com-plained that it wasn't his assignment and that otherswho had been ordered to do the loading had refusedand hadn't been punished. The Deputy Wardenchairing the hearing dismissed his plea, stating: "Theonly question in my mind is, did you refuse to do whatan officer ordered you to do?"

Another inmate, when ordered to give up his ciga-rettes on being reclassified to a lower status, refused,claiming that cigarettes were allowed in that status.Regardless of the merits of his claim, the refusal wasthought to justify disciplinary action.

While the Morris decree did not specificallyresolve the question of what particular patterns ofbehavior could be subject to prison discipline,202

our study revealed that inmates were disciplinedfor a broad range of actions, suggesting the manypurposes for which a prison disciplinary system isused. These purposes include the promotion ofstaff status and respect, the maintenance of control,order and security, deterrence, punishment, and atleast theoretically, rehabilitation. Obviously thismultirlicity of purpose may create conflictingpressures in particular situations, pressures which

1°2The court specifically excluded that point as"inappropriate to this action [Morris] at this time...Judge Pettine did note, however, that:

lilt has been contended that standards of substan-tive wrong for which an inmate can be classifiedinto a lower category are either non-existant or sovague as to be meaningless. In essence, this griev-ance seeks a code of conduct setting out clear butfair categories for intra-prison anti-social behaviorfor which punishment can be given. While the courthas decided to place this grievance beyond thereach of this case, it is one which should be givenserious consideration.

310 F. Supp. at 861 (1970).

[Vol. 63


may require different procedures than those usedin traditional due process proceedings.i °

3. Hearing Procedures. The Morris decreeestablished the following procedures for conductingthe hearing: reading to the inmate the charges andthe record of the surrounding circumstances;admission or denial of the charges by the inmate;interrogation of the inmate by the Board; andpresentation of evidence by the inmate.

In most of the cases observed by our researchersthere was considerable discussion of the casepreceding the inmate's entry into the hearingroom."' 4 Following the inmate's arrival, standardprocedure was to tell the inmate the charge and toask him whether he admitted or denied the alle-gations. If he admitted them, the charge would beread in full and frequently the sentence would thenbe imposed. If he denied the charge, the chargingofficer would be called into the room to re-readthe charge to the inmate. There was seldom anydetailed questioning of the officer about the factsof the case or the circumstances surrounding it.The inmate was given an opportunity to tell hisversion of the incident. While there is no explicitprovision in the decree authorizing the inmate tocall witnesses, on a number of occasions inmatesmade such a request and were denied, although onecase was observed in which a witness was per-mitted.0 5 Generally the classification counselorrendered limited assistance. After this usuallybrief presentation of the evidence, the inmatewould be sent out of the room and dispositionwould be discussed, with the chairman's recom-mendation most often the controlling opinion.The inmate would then be called back into theroom and told of the Board's decision and thedisposition.

In sum, the disciplinary hearings were verycursory affairs. The changing and investigativereports upon which the Board relied almost ex-clusively presented the circumstances surroundingthe alleged infraction inadequately 6 Further-more, although only in a minority of the monitoredcases did the inmate deny the charges, when therewere such denials the fact-finding inquiry wasminimal. Even when conflicting factual testimony

103 See note 161 infra.104 Often such extensive prior discussion centered

around the Board members' personal knowledge of theinmate and the circumstances of the alleged infraction.

"I The witness's testimony was disregarded by theBoard in the face of the charging officer's conflictingtestimony.

106 See note 76 supra.

was presented, no attempt was made to probemore deeply or to reconcile the contradictions.Perhaps this resulted primarily from fear of callinginto question the charging officer's credibility, afear which colors the entire disciplinary process.If an inmate were found not guilty in the face of anofficer's assertion of the inmate's guilt, the officermight well take such a finding as an attack on histruthfulness. Rather than so insult the chargingofficer, a prison official with whom each memberof the Disciplinary Board must work and live, thepresumption of credibility is strongly biasedagainst the inmate or inmate witness in anycontested case.

The real function of the Board is dispositional innature. Even in contested cases, with the pre-sumption of credibility so heavily weighted againstthe inmate, the Board's fact-finding role is sub-ordinated to its dispositional function. If thepredominant purpose of the Disciplinary Boardwere to evaluate an inmate's general progress inthe institution rather than to find facts regarding aparticular alleged offense, errors in fact-findingmight be tolerated. However, where the dispositionis keyed directly to the charged misconduct, as isostensibly the case at the ACI, fact-finding iscritical. Indeed, to minimize fact-finding wouldtend to reduce inmate morale and confidence in theintegrity of the disciplinary process.

4, Dispositiona. Procedure. As has already been noted, after

the evidence is presented at the hearing, theinmate leaves the room while the Board discussesits decision and the appropriate disposition. Theregulations dictate that the Board's decision bebased upon "substantial evidence." While thisrequirement might be thought to be useful inassuring at least a minimum of testimony thatthe alleged infraction actually occurred, in practicethere is almost always such evidence because theofficer's testimony usually states sufficient facts toconstitute a prima facie case of inmate violation.107

The decree also specifies that the inmate beadvised of the rationale and consequences of theBoard's decision. Only five of the thirteen inmatesin our interview sample who had been disciplined

107 This is especially true in the absence of any setlist of regulations, since almost any incident couldconstitute a violation. Furthermore, given the pre-sumption of credibility against the inmate, see textaccompanying note 76 supra, that Board findings bebased upon "substantial evidence" is an ineffectivestandard.


by the Board said that they were given any ex-planation at all. The rationale could be extremelyimportant, both for developing an underlyingphilosophy for the disciplinary system and forexplaining apparent inconsistencies in dispositionwhich tend to be seen by the inmate population asarbitrary or discriminatory actions. The followingaccount is an example of the situation prevailingwhen the hearings were being monitored:

Three inmates participated in smuggling foodinto the institution in violation of an institutionalrule. Two of the inmates, who were clearly accesso-ries to the violation, transferring the food to the re-ceiving inmate, were punished differently. One wassentenced to three days in punitive segregation andlost three days' good time, while the other wasmerely docked five days' pay (one dollar/day). Noexplanation was given as to the reasons for dis-tinguishing between the two in terms of punish-ment when both had committed the same offense.A possible explanation is that the one who waspunished more severely was a veteran prisoner whohad several previous disciplinary violations andwho was on work release, while the other inmatehad no disciplinary record. However, no mentionof these factors was made at the hearing.0)

Requiring the rationale to be written and pro-viding thorough review might well give addedweight to the requirement of substantial evidence.

b. Types of Dispositions. A broad range ofdispositions is used by the Disciplinary Boards atthe ACI. Table 2 describes the number of timeseach punishment was used as revealed by ourexamination of the records, observations of thehearings and interviews with the inmates. 1'

Obviously the Disciplinary Board has a broadrange of "sentencing" alternatives at its disposal.In fact, the Board often uses these dispositions in

108 A similar situation obtains in classification hear-ings where the inmate's job and custodial securitystatus is determined. At one classification hearing, forexample, all of the inmates sought to have theirsecurity status changed from maximum to minimum inorder to enhance their opportunity for parole. Thefirst inmate whose case was heard was transferred frommaximum security status to medium status despiteevidence of his good behavior. The warden stressedthat transfer from maximum status to medium statuswas the rule, and maximum to minimum status theexception. In three other cases that morning, inmateswere reclassified directly from maximum to minimumsecurity status.

109 Ward, using a lesser number of dispositionalcategories found the following distribution: Punitiveconfinement (692 instances--48%); Restriction ofPrivileges and Loss of Good Time (350-24%);Verbal Penalities and Suspended Sentence (228-16%);Other (137-9%); No Action (42-3%). Ward, supranote 92.

combination. In the examination of our recordsamples, 159 different punishment combinationswere discovered. While there is a substantial num-ber of non-punitive as well as punitive options, theactions taken were essentially punitive ones.

The Morris decree did not limit the types ofpunishment which the Board could impose, butsanctioned the existing types of dispositions andplaced a thirty-day limit on the duration of anyspecific punishment."0 A detailed study of thecases in the record sample arising after the con-sent decree indicated that, with only minor excep-tions,"' there was substantial compliance withthese limitations. However, subsequent conversa-tions with staff members revealed one or two casesin which inmates were segregated for longer thanthirty days, although not in the same segregationarea. As a rule, according to our record sampleanalysis, punishment seems to have become morelenient after the decree."' The punishments gen-erally thought to be most severe, i.e., segregationand loss of good time, comprised only 19% and7% respectively of the dispositions after the decree.Before the decree 30% of the dispositions involvedsegregation and 15% loss of good time. At thesame time, the 'qighter" dispositions, such asreprimands, suspensions, and probations increased,as did the percentage of charges dropped and find-ings of not guilty, as seen in Table 3. This change,however, does not necessarily reflect the impactof the decree, but may be due to the change inn°The regulations stipulate that the following

actions may be taken by a Disciplinary Board: (1)Dismissal of Charge; (2) Reprimand; (3) Recom-mendations to Classification Board for change ofstatus; (4) Temporary loss of specified privileges withininmate classification not to exceed thirty days; (5)One to thirty days placement in punitive segregation;(6) Referral to Classification Board with recommenda-tion of reclassification plus (5) supra; (7) Loss of goodtime as prescribed by law under § 13-3-44 of theGeneral Laws of Rhode Island; (8) Any combinationof (3) through (7) and/or suspended action on any orall of (3) through (7).

" Only nine cases were found in which somethingother than the punishments described in the regulationswas the stated disposition. In four cases, the inmateswere given 90 days' probation. The decree makes nomention of probation, although it does allow "suspendedaction." The regulations also establish an outer limitof thirty days on most disciplinary activity. In fourother cases, the disciplinary record indicates that theinmate was released on bail. In the ninth case, therecord simply indicates that the case was referred to thewarden.

"' For example, some interviewed inmates whenasked for changes caused by the decree responded:"They're not putting guys in the hole [a form ofsegregation] as much," and "the board got easier."Similarly, a staff member commented that "theextremes have been eliminated."

[Vol. 63


TABLE 2TYPE OF PUNIS MENT METED OUT BY DISCIPLmARY BoARD

Number of Times DispositionUsed in Each Sample

Type of Disposition Total

Record Monitored InterviewSample Sample Sample

Segregated* ............................ 189 20 21 230 (27%) "Lost Good Time** ...................... 143 12 155 (18%)Reprimanded, Suspended Punishment, Pro-

bation ............................. 132 16 7 155 (18%)Loss of Privileges*** ..................... 82 6 88 (10%)Referred to Classification Boardf .......... 79 3 1 83 (10%)Kept in Celt ........................... 38 4 14 56 (6%)Transferredlf ........................... 38 1 39 (5%)Charges Droppedf ...................... 18 18 (2%)Not Guilty ............................. 13 4 1 18 (2%)Other .................................. 16 4 20 (2% )

Total No. Dispositions ................. 862 (100%)

* Segregation implies that an inmate is removed from his regular cell or living area and is placed apart from the

general inmate population. The privileges accorded to one in segregation vary from time to time and often frominmate to inmate and differ according to the particular segregation area in which the inmate is placed.

** All prisoners sentenced to terms of six months and over are eligible for good time deductions ranging fromone to ten days per month depending upon the length of their sentence. These credits are deducted from thismaximum sentence and provide a means for the inmate to bring closer his date of release. However, those goodtime credits may be lost as a result of disciplinary action. In many cases where segregation is imposed at the ACI,good time is also removed automatically. For a discussion of the seriousness of loss of good time and its effectupon lengthening an inmate's sentence, see Turner, supra note 5.

*** Loss of privileges encompasses a wide variety of punishments. An inmate may be deprived of his eveningactivities, his job (and pay), and his exercise period. On occasion, inmates have even been deprived of mail, visi-tation, and chapel privileges. Deprivation of privileges is considered to be a most effective punishment, since itenables the administration to punish an inmate in the way most particularly meaningful to him. At the sametime, it does not require cutting him off from the rest of the population or extending his sentence.

f Inmates are usually referred to the Classification Board when segregation is thought desirable. In addition,as a result of the Morris decree, reclassification to a lower status (meaning fewer privileges and more rigid con-trol), while really a disciplinary function, must be decided by the Classification Board.

t The punishment of keeping an inmate in his cell also covers a number of types of discipline. These includetwo-night lockups (see note 150 infra), confinement to cell during day, confinement to cell at night, and confine-ment to a particular area of the prison (e.g., work release area). In all of these situations, the inmate is kept inhis own quarters but is not allowed to leave them at certain periods, as he regularly would.

tf Rather than confining an inmate to his cell, the Board may feel that, for a variety of reasons, the inmate'sdifficulties result from his being in one area or another, either for work or for residence. In such cases, the inmatemay be transferred to another job or residence assignment.

tt In a few cases, the charges are dropped. These are not acquittals but rather dismissals for a variety of tech-nical reasons. Sometimes the inmate's sentence will have expired, and he will be discharged before appearingbefore the Board. In other cases, particularly after the court's decree, the charge may have been dismissed forfailure to comply with required procedures. These cases are rare and usually indicate a blatant disregard of theregulations of the decree.


TABLE 3

PUNISHMINT BEFORE AND AFTER THE DECREE

Punishment

Segregation ...............Loss of Good Time ........Reprimand, Suspended,

Probation ............Loss of Privileges ..........Referred to Classification

Board ................Kept in Cell ..............Transferred ...............Charges Dropped ..........Not Guilty ............Other .................

Total No. of Dispositions.

Date of Punishment

7/69-3/10/70 3/11/70-10/70Before After

32 (30%)17 (15%)

13 (12%)34 (30%)

5 (5%)2 (2%)0 (0%)2 (2%)3 (2%)2 (2%)

110 (100%)

44 (19%)16 (7%)

70 (31%)37 (16%)

229 (100%)

wardens, which took place at about the same timeas the decree took effect.111

113 By way of contrast, there was much less of achange in the types of misconduct being brought beforethe Board. This may reflect the fact that the decreedid not deal with this topic, or it may be that thewarden either did not disagree with the existingpractices or else was not able to translate desiredchange into practice. Table 4 describes the types ofmisconduct brought before the Board before and afterthe decree, as revealed by our record sample.

TABLE 4MIscoNDucr BEFORE AND AFTER THE DECREE

Misconduct

Trouble with Guards .......Fighting/A & B ...........Refusals ..................Escape ...................Poss. Prohib. Articles ......Alcohol, Drugs ............Creating a Disturbance ....Out of Place ..............Destruction of State Prop...Throwing Food Out of Cell.Fire in Cell ...............Larceny of Table ..........Violating Security Rules....Cutting Wrists ............Carrying Protest Sign ......

Date of Misconduct

7/69-3/10/70 3/11/70-10/70Before After

(35%)(15%)(15%)(1%)(1%)

(3%)(0%)(0%)(5%)(18%)(3%)(3%)(1%)(0%)(0%)

Total No. of Infractions..1 78 (100%)

64 (31%)47 (22%)32 (15%)

0 (0%)15 (7%)14 (7%)

9 (4%)14 (7%)4 (2%)0 (0%)1 (1%)0 (0%)1 (1%)1 (1%)5 (2%)

207 (100%)

c. Relationship between dispositions and otherfactors. Since no underlying rationale for disciplineat ACI was stated either in prison documents orat the hearings themselves, our study attempted todiscover if there were some de facto rationale, byexamining the correlations between the disposi-tions and a number of other factors: viz., types ofmisconduct, custodial classification, and a varietyof "demographic" factors.

i. Correlation between dispositions and types ofmisconduct. The study showed little correlationbetween the type of misconduct with which aninmate was charged and the type of punishmenthe received. For example, an inmate who getsinto trouble with the guards is as likely to bereprimanded, or given a suspended punishment,or put on probation (all relatively light penalties)as he is to lose good time (a very severe punish-ment). Moreover, one may lose good time or besegregated for mere refusal, or being out of place,or talking when not permitted, as well as for themore serious offenses of escape, fighting, and useor possession of alcohol or drugs. Much the samecan be said for prior detention--one is just aboutas likely to be detained prior to a hearing forlesser offenses as for more serious ones. Table 5shows the correlation between the various typesof misconducts and dispositions found in thestudy's record sample.

There are a number of possible explanations forthese findings. One is that our judgment as to theseriousness of an offense may be considerablydifferent from that of the Disciplinary Board.That is, to the members of the Board, being out ofplace may be as serious as fighting. While thisexplanation might rationalize the seeming lack ofdifference in the range of punishments for thevarious types of misconduct, it still would notexplain the differences in punishment within eachmisconduct category.

A second possible explanation is that the dis-positional decision is not based on categorizationof the type of misconduct, but on the details ofthe individual incident. This explanation is un-tenable not only because the fact-finding processwas too inadequate to suggest Disciplinary Boardconsideration of the circumstances of individualincidents, but also because one would still expectthe different categories of misconduct to show somesignificant differences in disposition. In the largercriminal justice system, for example, while both amurderer and a pickpocket may receive suspendedsentences due to the circumstances of their indi-

[Vol. 63


TABLE 5CORRELATION BETWEEN MiscoNDucT AND DISPOSITION

Type of Misconduct

Troubl w/Guards .......Fighting, A & B ........Refusals ................Alcohol, Drugs ..........Other Prohibited Arti-

cles .............General Disturbance .....Escape .................Destruction of Prop......Out of Place ............Throwing Food .........Talking at Wrong Time..Carrying Protest Sign ....Fire in Cell .............Larceny of Table ........Cutting Wrist ...........

I Type of Punishment (Numbers of Inmates)

Seg-re-

gated

67192027

20172344150301

Lossof

GoodTime

43131514

152830162020100

Rep.Susp.Prob.

4140154

75145044120

Lossof

Privs.

2016142

33629

1200101

Referedto

Class.Board

11

01115

4182546000000

Keptin

Cell

61

102

27864000000

Trans- 9ChargesI Notfer pped Guilt Other

1011

5

5

6812010000

8360

11

000000000

Pre-Hear-ing

Deten-tion

68604220

2821111815064100

vidual crime, it is unlikely that the pickpocketwould ever be subject to the same maximum sen-tence as the murderer. That is, there is a scale ofseriousness reflected in our criminal code, indicatedby the maximum punishment to which an offenderis subject. There seems to be no such scale withregard to prison offenses at the ACI. Using maxi-mum punishments as an indicator of seriousness,it would seem that virtually every category of mis-conduct is potentially as serious as the others.

A third possible explanation of the divergenceof misconduct and disposition is that punishmentvaries not according to the facts of the incidentitself, but according to the institutional history ofthe offender." 4 This may mean an inmate isbranded as a "troublemaker" for whatever reasonand however appropriately. Such an indeliblemark on an inmate's informally perceived recordmay arise from an inmate's getting into fights, orhis reading revolutionary literature, or his pressingcourt claims against the institution. At times, theseunderlying grounds of decisions are articulated;more often, they are not.

Regardless of the explanation, apparent dis-positional inconsistencies can only lead the inmateto question the fairness of the disciplinary processand to attribute the discrepancies to some other

114 Cf. note 91 supra.

factor, such as the differences in personality typeof the two Deputy Wardens, or the custodial com-position of the Board, or blatant discriminationagainst him. Individualized punishment may haveits advantages, but it must be based on an objec-tive appraisal of the inmate's problem and hisconduct, and should rest on dearly articulatedrationales." 5

1- The correctional field has witnessed a debate be-tween those who would advocate individualized punish-ment and those who favor a fixed penalty for each typeof misconduct. Proponents of the fixed penalty main-tain that individualized dispositions by the disciplinarycourt are "vague, contradictory and inconsistent" and"preclude a stable atmosphere of inmate expectationsaround the definition and limits of orderly behavior."R. KopN & L. McCoar=t, CRIMINOLOGY A_ D PE-NOLOGY 476 (1959). They further contend that, absentuniformity in punishment, correctional officials will loseconfidence in the disciplinary court and apply their ownpunishments. Id.

Proponents of individualized punishment posit thatobjectionable behavior in prison is so diverse that anyset of rules will be so "complex as to be difficult toapply, or so arbitrary as to arouse resentment bydealing similarly with highly diverse acts." D. GLASER,TnE EFEcr rvENEss OF A PRISON AND) PAROLE SYSTEM179 (1964). The proponents maintain that flexible ruleswill minimize inmate-staff friction by providing forpenalties which are likely to have a positive effect onthe future behavior of the individual offender. Id.

The appropriate solution may lie somewhere inbetween, perhaps, as Glaser suggests, by using aflexible policy for major infractions and a more rigidpolicy for the less serious violations. Id. at 184.

19721

Deten-tionCon-sid-ered

2615115

62214010100


TABLE 6TYPE OF DISPOSITION COMPARED WrI CUSTODIAL CLASSIwICATION

Custodial SettingType of Disposition

Work Release Medium-Minimum Maximum

Segregated .......................... 18 (25%) 111 (28%) 76 (22%)Lost Good Time ..................... 17 (24%) 107 (27%) 33 (10%)Reprimand, Suspended, Probation .... 2 (3%) 40 (10%) 83 (25%)Lost Privileges ...................... 1 (1%) 11 (3%) 71 (21%)Referred to Classification Board ........ 21 (29%) 58 (15%) 21 (6%)Kept in Cell ........................ 5 (7%) 23 (6%) 14 (4%)Transferred ......................... 7 (10%) 36 (9%) 1 (0%)Charges Dropped .................... 0 (0%) 3 (1%) 15 (4%)Not Guilty ......................... 0 (0%) 0 (0%) 13 (4%)Other .............................. 1 (1%) 4 (1%) 12 (4%)

Total Number of Dispositions ......... 72 (100%) 393 (100%) 339 (100%)

TABLE 7

DETENTION CONSIDERED COMPARED WITH CUSTODIAL

SETTING

Custodial Setting

Work Medium- MaximumRelease Minimum

Pre-HearingDetention.... 8 (30%) 132 (68%) 116 (44%)

Detention Con-sidered in Fi-nal Disposi-tion ......... 1 (4%) 35 (18%) 31 (12%)

Total Discipli-nary Cases... 27 (100%) 194 (100%) 264 (100%)

ii. Correlation between dispositions and cus-todial setting. The custodial setting in which aninmate was incarcerated and therefore the Dis-ciplinary Board to which he was subject did makea difference in the disciplinary treatment of theinmate. In general, punishment in the minimumfacility was harsher than that in maximum. Table6 describes the study's analysis of the record sampleaccording to custodial classification. In minimum,an inmate charged with a disciplinary violation wasmuch more likely to be segregated or lose goodtime than an inmate in maximum. Conversely, hewas much less likely to be merely reprimanded,given a suspended punishment or probation, loseprivileges, have his charges dropped, or be found

not guilty, than his fellow inmate in maximum.While a large proportion of all inmates are likelyto be detained prior to the Disciplinary Boardhearing, those in minimum have an even greaterprospect of prehearing detention, as seen in Table 7.

This disparity in dispositions between the twoparts of the institution may be explained in anumber of ways. First, the barracks-type settingof the medium-minimum facility could make itmore imperative that an unruly inmate be removedby segregation or reclassification, while in maxi-mum an inmate could be isolated merely by con-fining him to his own cell. Second, the staff inmedium-minimum may expect more from thatfacility's inmates (and work releasees, for thatmatter), since the less secure custody classificationis supposed to connote increased privileges tem-pered by greater responsibility. Hence, due totheir expectations of better behavior, the staff inmedium-minimum may punish misdeeds moreseverely.' Finally, the disparity may be due tothe different personnel on both boards and theabsence of any uniform dispositional standard orguidelines. The impression of the study's observerswas that the different personalities of the membersof the two boards made a significant difference inthe dispositions they reached.

iii. Correlation between dispositions and demo-graphic factors. The study's analysis of this issue

us With the seeming arbitrariness of the classificationprocedure at the ACI, see note 108 supra, this notion ofvarying institutional expectations may be inappropri-ate.

[Vol. 63


is based on the interview sample of sixty inmates.nAge, race, length of sentence, number of convic-tions, maximum release date, and parole eligibilitydate appeared to make no significant differencewith respect to the type of misconduct engaged inor the type of punishment received.

The lack of significant difference on all of thesefactors may be due to the limited size of our sam-ple, and therefore, we do not conclude from theseresults that the disciplinary system as a whole atthe ACI is non-discriminatory as to any or all ofthese factors. On the other hand, our data cer-tainly do not provide any evidence of this kind ofdiscrimination. Therefore, it would appear thatwhile the disciplinary process may be individualis-tic, the individualistic determinations are probablybased upon factors other than, or in addition to,this demographic data, such as the facts of the in-cident itself, an overall evaluation of the inmate'sprogress, the board members' personal opinions ofthe inmate, and the custodial setting.

d. The Use of Classification for DisciplinaryPurposes. As has already been indicated, referralto the Classification Board is one possible dis-ciplinary dispositional alternative. The Morrisdecree established four classification statuses:

Category "A"--This is the normal status of thegeneral prison population. Inmates in this statusare entitled to all privileges.

Category 'B"--"Category of inmates who be-cause of their pattern [of] conduct require closerestrictive movement and closer supervision thanCategory 'A' population on a temporary basis.Work eligibility is suspended in this category."Other privileges are limited and living location isto be determined by the administration.

Category "C"-"Category of inmates whoseconduct indicates chronic inability to adjust togeneral prison population or who require maximumprotection for themselves or others or whose con-duct constitutes a threat to the security of theinstitution." Privileges are even further limitedand the inmate is to be placed in a separate livinglocation.

Category "D"-"Category for inmates who be-cause of their course of conduct while classifiedwithin Category 'C' require closer control thanprovided with 'C' category." Privileges are severely

1 The demographic information was not collectedon the inmates whose hearings were actually observedor on the record sample because of difficulties inherentin such data collection.

limited and the inmate is to be placed in a separateliving location.

As established by the consent decree, reclassifica-tion from the normal "A" status is '"predicated onconduct of inmate which indicates inability to ad-just in general prison population for the protectionof inmates or others and for the security of theinstitution." Any downgrading of status is to beaccompanied by procedural protections similar tothose required for disciplinary proceedings andmust be predicated upon a prior finding of mis-conduct by the Disciplinary Board. The rationaleunderlying this disciplinary reclassification proce-dure is that once the inmate has been identified bythe Disciplinary Board, on the basis of its findingof misconduct, as a serious enough disciplinaryproblem to warrant segregation, the inmate is tobe referred to the Classification Board for a down-grading of his status from Category "A." He isthen placed in either Category 'B," or "C," or"D," with concomitantly decreasing privileges."8

In practice, only rarely does the ClassificationBoard refer to the A, B, C, and D categories, asthey axe detailed in the regulations. Instead, theBoard speaks in terms of the substance of thepunishment (i.e., segregation, lock-up, etc.) andnot in terms of broad categories of punishmentsets. At times, this practical divergence from theregulations created considerable confusion." 9

18 This notion of "reclassification" for discipline issimilar to the practice in other correctional systems ofhaving different types of facilities for inmates who aredisciplinary problems. California, for example, hasspecial "adjustment centers." In Rhode Island, withlimited resources and limited facilities, this flexibilitydoes not exist.

n'The following monitored case illustrates thisconfusion:

An inmate was charged before the DisciplinaryBoard with refusing to give up his cigarettes whilebeing placed in punitive segregation. The inmateclaimed that, pursuant to the classification cate-gories outlined in the court order, cigarettes werenot one of the privileges that could be denied him.The hearing chairman said that punitive segrega-tion was something different from the classificationcategories established in the order. The inmatesaid: '"unitive-what do you think these 'classifi-cation' categories are? That's what it's all about."There was an argument about the meaning ofclassification and the difference between classifica-tion and discipline. The inmate read from the rulesand argued that he was entitled to cigarettes insegregation. The chairman admitted that the differ-ence between punitive segregation and some of theclassification categories was confusing. The hearingthen proceeded to other matters. Eventually theinmate was punished for having sworn at the guardwho told him he couldn't have the cigarettes.


Moreover, the rigid categories sometimes work tothe disadvantage of the inmates. For example,Category "B" requires suspension of work eligibil-ity, which, in the view of some staff members, isnot always necessary or prudent for inmates whomight be assigned to that status.

The study's analysis of the record sample re-vealed that only a relatively small percentage ofthe classification hearings120 which were held afterthe decree was entered were for disciplinary pur-poses. Sixteen disciplinary cases out of 229 (7%)were referred to the Classification Board. Eightclassification hearings out of the 105 (7.67%) moni-tored by the study's observers involved disciplin-ary action.' 2' In all these eight cases there wassubstantial compliance with the procedural re-quirements of the order.

There seems to be little reason for the Classifica-tion Board to be involved in disciplinary consider-ations at all. Since in practice there is no realdiscussion of the appropriate "classification cate-gory" for the inmate, but rather a mere impositionof punishment through downgrading of status, theClassification Board, in reclassifying inmates,seems to be performing the same disciplinaryfunction as the Disciplinary Board. In fact, someClassification Board members expressed the viewthat there were times when the Disciplinary Board,by referring a case, was merely "passing the buck"

120 Classification hearings are held every Tuesdaymorning and are chaired on alternate weeks by theWarden and the Assistant Warden. In attendance at atypical classification hearing are either the Warden orAssistant Warden, the deputy wardens of both maxi-mum and medium-minimum, one classification counse-lor, and the vocational supervisor or his assistant. Theclassification counselor reads a summary of the in-mate's central file and the Board members discusswhy the inmate is coming before them as well as howbest to dispose of his case. Usually, a determination ismade before the inmate enters the meeting. Once calledin, the inmate is generally asked a few routine questions(e.g., "Where do you want to work?" "Why don't youlike your present job?"). The inmate is then asked toleave the room. The Board usually has a brief discussionof their final disposition; this discussion usually does notdiffer very much from their discussion prior to theinmate's entry into the meeting. The inmate is thencalled in for a second time and told where he will beworking or that he has been given a lower or highersecurity classification.

"I Although the decree proscribes the ClassificationBoard's considering misconduct, in a minor sensemisconduct was considered by the Classification Boardin cases other than reclassification. However, these werenot cases involving downgrading. For instance, aprisoner might have his job changed or his securityrating changed because he was constantly picking fightsin his job or living area. This uses his misconduct, butnot in a severe way such as placing him in segregation.

and not giving the case the consideration which itdeserves. At the same time, the ClassificationBoard was distracted from its main function ofdesigning constructive programs for inmates,"' atask to which the Board could devote considerablymore time and attention." 3 Discipline at the ACIshould be the responsibility of the DisciplinaryBoard exclusively. Disciplinary action should notinterfere with the inmate's institutional program,unless the misconduct is closely related to thatprogram (e.g., constant fights with the programsupervisor, escape from work release). If the pun-ishment decided upon requires a disruption of theinmate's program, the staff and inmate shouldwork toward restoring the inmate to his programand toward meeting its rehabilitative goals. Inpractical terms, this also means that disciplinewill not be according to the rigid A, B, C, or Dcategories prescribed in the order; rather, punish-ment will be more individualized.

Removing the disciplinary function from theClassification Board does not mean, however, thatthe Classification Board cannot consider whetheran inmate's misconduct oi pattern of misconductin conjunction with other available information

12 Judge Pettine's decree set the following goals forthe ACI classification process:

The primary objective of classification as a systematicprocess is the development and administration of anintegrated and realistic program of treatment for theindividual, with procedures for changing the programwhen indicated. This primary objective is attainedthrough five general approaches: (a) The analysis ofthe individual's problems through the use of everyavailable diagnostic technique, including social in-vestigation, medical, psychological, psychiatric ex-aminations, educational, vocational, religious, andrecreational studies. The observations of custodialofficers offer data of value. (b) A treatment and trainingprogram is evolved in staff conference during or afterthe inmate's personal appearance before the Board,based upon these analyses and a frank discussion of itspurposes with the inmate. (c) The program decidedupon must be placed into operation. (d) It may berevised when indicated. Classification, a dynamicprocess, cannot be effective unless program modifica-tions are made in accordance with the changing needsof the individual inmate. (e) What is done for the in-mate in the institution needs to be correlated with hisprogram on parole.

" There is no real "systematic process" of develop-ing "an integral and realistic program of treatment forthe individual" at the ACI. Cf. Morris v. Travisono,310 F. Supp. 857 (D.R.I. 1970). Although this classifica-tion inadequacy is primarily a result of a lack ofresources, facilities, staff and training, it may also bepartly attributed to the confusion in the classificationprocedure itself. The Classification Board in practiceserved three entirely different functions: (1) securityclassification (2) job and program classification, and (3)disciplinary reclassification.

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about him requires a revision of his program.That decision, however, should not be a punitiveor disciplinary one, but should result in an in-dividualized reorientation of goals and means toreach these goals consonant with the inmate'sprogress up to that ime.

F. Review

According to the regulations, review by theWarden is required "of any [disciplinary] proceed-ing which ... results in an unfavorable decision forthe inmate." While the review process .was ex-tremely difficult to monitor, our findings suggestthat although the Warden apparently does "see"all of the decisions of the Disciplinary Board, theexcessive time pressure on him makes the presentreview mechanism at the ACI fundamentally in-adequate

24

In other than extraordinary cases there wasvery little channelling of information about thereview process from the Warden down to the staffand inmates. Many inmates were not aware oftheir appeal perogatives. Furthermore, althoughin a few select cases the classification counselorassisted the inmate in the preparation of his ap-peal, a large majority of inmates interviewedstated that they did not receive such assistance inpreparing their case for the Warden's review. Giventhe fundamental importance of the review processin insuring the integrity of the disciplinary pro-ceedings, reforms are critically needed.

In order for the review process to be effective,the record which serves as a basis for review mustbe complete and must clearly state all the relevantissues.125 While training of staff to perform thisfunction in the first instance is important, 2 6 in-vestigational aides could be used to help preparecases for review. These aides could include in-ternal prison personnel or outside groups withaccess to the prison, such as law students"27 or

"2' At the time of the study, the Wardenhad decreasedpunishment in "three or four cases" within the fewmonths he presided over the ACI.

125 Where the record of the proceedings below isincomplete, any review to be based upon a "sub-stantial evidence requirement" is ineffectual.

121 In particular, the initial account by the chargingofficer, the superior officer's investigation and thewritten account of the Board hearing should be com-pleted in substantially more detail than they arepresently.

2 Law students participating in prison legal assis-tance projects (forming in law schools throughout thecountry) could effectively screen and assist in thepreparation of cases for review.

practicing attorneys.in8 These aides could performthe following functions:

(1) They could investigate inmate complaintsand where such complaints are dearly unfoundedor lacking sufficient grounds to present a review-able issue, the aides could explain to the inmateswhy they are unlikely to be successful in theirappeal. This function may decrease the number ofappeals to the formal reviewing authority.

(2) They could assist the inmates in presentingtheir claims where they are well founded, therebyclarifying the issues for review.

(3) Through their work with inmate complaints,they could help identify deficiencies in procedures,policies and practices and could work with theprison administration to correct these deficiencies.

Although, dearly, where such investigationalaides convey their findings directly to the prisonauthorities, problems in sustaining inmate trustand confidence would arise, the mere presence ofsuch personnel might well induce closer adherenceto all disciplinary regulations by correctionalofficers and other prison officials. Furthermore,outsiders, either citizen advisory commissions,12 9

special masters,"' or all-purpose ombudsmen,"'may even serve as the final reviewing authority.The presence of such outsiders might offset someof the problems of "internalization" endemic tocorrectional institutions in the following respects:

(1) The outsider's decision is not as likely to beaffected by past, personal, informal knowledge ofthe involved parties.

(2) He is less subject to institutional pressures.He is not threatened, as is the administrative staff,

in Judge Pettine elicited the volunteer services ofseveral lawyers in Rhode Island to assist in investigat-ing inmate complaints and preparing legitimate com-plaints for appropriate review.

129 Such groups, composed of private citizens, al-ready exist in some states, including Rhode Island andNew York. Usually, however, these groups have beenrather inactive, responding only to crisis situations.

110 Such special masters have been appointed toprevent discrimination in voting, pay, and promotion,and in a recent suit in Philadelphia, federal Judge JohnFullam was asked to appoint a special master to overseethe activities of the police department. The purpose ofthat master was to control police abuse by conductinginvestigations and holding "public contempt" hearings.

"' See discussion of the functions of impartial,professional prison ombudsmen, in Gellhorn, Ombuds-man's Relevance to American Municipal Affairs, 54A.B.A.J. 134 (1968). Indeed, the Oregon Departmentof Corrections announced that an ombudsman, selectedfrom a list of candidates submitted by the inmates,would be appointed to expedite the processing ofinmate grievances.See N.Y. Times, March 6,1971, at 10,col. 5.


by disrupting staff morale. His examination of thefacts would not be encumbered by an automaticpresumption against the inmate's credibility.

(3) Whether or not the initial stages of the dis-ciplinary proceeding have been fair, an objectiveoutsider is likely to have more credibility withinmates because of the apparent impartiality ofhis position.

(4) His fact-finding investigation may meetwith greater success because inmates with relevantinformation may be less fearful of retaliatory ac-tion than they would be when revealing possiblyself-incriminatory evidence to administrative staff.Although such outsiders may initially be viewedas a threat to the administrative staff of the cor-rectional institution, their continued presence, inhelping to secure the integrity of the disciplinaryprocess, might eventually lend authority andgreater inmate respect for correctional personnel.

An efficient and effective review procedure isessential, both to correct any injustices that mightoccur in the disciplinary proceeding and to assurethe proper functioning of the system consistentwith the disciplinary regulations. Review, then,should not only be seen as a process of correctingabuses, but should also be viewed by the prisonadministration as a means of monitoring the in-ternal operations of the prison.

IV. THE Lnmrs oF THE PROCEDURALDUE PRocEss APPROACH

As the preceding discussion has indicated, dis-ciplinary and classification procedures at the ACI,observed by the Center's researchers after theimposition of the Morris decree, did not meet theexpectations of the court. While notice was oftengiven, its adequacy was questionable; indeed, asubstantial number of the inmates interviewedclaimed that they never received any notice. Pre-hearing detention was as prevalent after the decreeas before, and the reasons for such detentions werenowhere recorded. The superior officer's investiga-tion was little more than a restatement of thecharge and a cursory report of the inmate's atti-tude. Classification counselors were tom betweenconflicting role requirements and consequentlywere unable to afford the inmates the vigorousadvocacy which was anticipated by the representa-tion provision of the regulations. The DisciplinaryBoard hearings were substantially dispositional innature, with little effort' at fact-finding and a greatdeal of deference given to the testimony of the

charging officer and to the views of the Boardchairman. While the extremes of the Board's dis-positions were ostensibly eliminated, there wereone or two cases in which the maximum punish-ment limits appeared to have been exceeded. Inaddition, the classification categories set out in thedecree proved unduly restrictive in practice. Andfinally, the review process was inadequate.

Although this summary statement of our find-ings presents a rather pessimistic picture of thepractical application of the Morris decree to theACI, inmate responses to the effects of the newclassification and disciplinary procedures were, forthe most part, far from unfavorable. While muchof this positive inmate response may be merely areaction to judicial intervention and attention,Inrather than an indication of the practical impactof the decree, there clearly were some objectivemanifestations of institutional change. Cases weredismissed where there were technical violations ofthe regulations, inmate witnesses were allowed insome cases, delays between charge and final hear-ing were minimized, and the extreme forms ofpunishment which instigated the imposition of theorder were largely eliminated.iD Further, there.wasa growing recognition by administrative andcustodial staff that inmates did have rights, rightsthat would be contested and enforced. Acceptanceof this fundamental notion is a necessary predicateto any effective prison reform. However, despiteany progressive changes promulgated by the newregulations, the effectiveness of the procedural dueprocess model at the ACI was critically limited.3

1n The inmates were generally quite -aware of thedecree's existence. A copy of the regulations was to bedistributed to every inmate at the ACI and given toevery newly committed prisoner upon entry. To checkthe familiarity of the prison population with thedecree, we asked the inmates in our interview samplewhether they had heard of the decree, received a copyof it, read a copy of it, discussed it and used it. Theirresponses were: Heard of decree (88%0); Received copy(70%); Read copy (68%); Discussed copy (57%);Used decree (2300).

13 Again it is important to reiterate the difficulty ofdetermining how many of these changes resulted fromthe court decree and how many can be attributed to thenew Warden.

14In examining and evaluating the effect of theMorris decree, our analysis has been directed towardwhat we have described as a procedural due processmodel, a model which stipulates procedures providingfor a limited adversary hearing. This proceduralprotection approach followed by the Morris court is theone most often taken by courts when problems ofchecking administrative discretion have been presentedto them.

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The following discussion will suggest reasons forthis limited effectiveness.

A. The Multiple Purposes of Prisons

The court's decree approaches prison discipli-nary procedures irk a basically unidimensionalmanner, imposing intricatelact-finding proceduresas preconditions to disciplinary actions. Althoughthe similarity of this procedural due processapproach to the judicial trend toward insuringprocedural regularity in our criminal system isapparent, the dissimilarities between the prisondisciplinary setting and the criminal trial settingare equally apparent. Prison disciplinary processesoften serve multiple if not conflicting purposes.Any analysis of such correctional processes musttherefore be viewed in the context of these multipleobjectives.

Perhaps the most significant factor observed byour researheri was that the disciplinary proc-esses at the ACI were pervasively dispositional innature1 The critical problem, therefore, inapplying a procedural due process model to theACI is that such a model is designed to insure theintegrity and fairness of the fact-finding, and not.the dispositional, process. Certainly, where there isa dispute as to the facts of a particular case, fairprocedures in resolving that dispute are desirable.However, the value of these procedures may beconsidered against their possible interference withother functions and the purposes of the discipli-nary process.

We have already examined some of the reasonswhy fact-finding is minimized at the ACI1 6

Primary among them is the preservation of staffmorale, especially custodial staff morale. Thepresumption of credibility must be against theinmate if the members of the Disciplinary Boardare to continue to be on "good terms" with thecharging and superior officers with whom theywork daily. This maintenance of staff morale isreflected not only in the minimization of the fact-finding process, but also in the types of conductsubject to disciplinary action. Well over one-thirdof the misconduct incidents for which inmates werebrought before the Disciplinary Board involvedconflicts with guards and staff.11r

1 See text accompanying note 106 supra.16 See text accompanying note 77 supra.1v Incidents involving trouble with guards or staff

and refusals to obey prison personnel comprise 39%of the disciplinary incidents in our sample. See Table 1.

- Scrutiny of the types of behavior subject todisciplinary action reveals that the maintenance ofcontrol is another critical purpose of the discipli-nary process at the AC."' Discipline contributesto control, not only by curtailing potentiallydisruptive incidents, but also by creating a sub-stantial deterrent to such disruption. Clearly, themaintenance of tight control is a paramountconcern of all prison administrators. However, atthe ACI, almost all "rule infractions" wereviewed as threats to control and institutionalauthority. Such rigidity of response and attitudemay well exacerbate rather than ease the controlproblem.

Treatment is yet another potential purpose of aprison disciplinary systemY"' While the wide rangeof punishable actions and the types of dispositionsmeted out at the ACI might not immediatelysuggest concern for treatment as a prime factor inthe disciplinary process, 40 a staff member com-mented:

The court decree works against the inmate. It istoo formal, too rigid. It dehumanizes the ACL Wehave tried to humanize the ACI by abolishing theuse of prison numbers. The new regulations workin the opposite direction1U

The prison disciplinary system may also serve asa means of suppressing unpopular views. Thebanning of certain books,"' limitations on.protest

Many of these incidents led to rather severe penalties.See Table 2.

m The vast majority of misconduct violations re-ported were for actions threatening institutionalcontrol or authority. See Table 1. These were notsituations in which large-scale riots or outbreaks werelikely, but ones in which the reporting staff memberfelt that his authority or that of the institution had beenthreatened. The inmate may have refused to do acertain job, talked back, or in some other way affrontedauthority. While a single incident would not usuallyhave any major repercussions, institutional admini-strators generally feel that repeated incidents of thistype could eventually mushroom into an outbreak ofmajor proportions.

9 But see Sol Rubin's critique that treatment forinmates may really be an illusion. Rubin, Illusions ofTreatment in Sentences and Civil Commitments, 16Cmm & Dx-.rn. 79 (1970).

140The line differentiating punishment from treat-ment is not always clear. Cf In re Gault, 387 U.S. 1(1967). Of course, punitive action may be a form oftreatment, just as some types of treatment may bepunitive.

' This comment to our researchers was made at oneof the weekly meetings the Warden had with his super-visory staff in response to a question asking whether amore detailed, explicit disciplinary code was needed.

"2Cf. 83 HAnv. L. REv. N 2, at VII (With TheEditors) (1969) describing the Sostre case. See note 37


activitiesW and the censorship of mail 1 -allraise serious first amendment questions. Althoughsuch suppression may not be a legitimate objectiveof prison discipline, 45 in framing procedures ap-propriate to such a system, all of the relevantpurposes and processes must first be ascertained.Punishment, maintenance of staff morale, control,deterrence, treatment, and the suppression of un-popular ideas must all be considered before asystem can be designed which will accommodatethe often conflicting purposes of prison discipline.

B. Different Levels of Disciplinary Action Withinthe Prison

Another factor limiting the effectiveness of thecourt's decree was the fact that the regulationsapplied substantially the same procedural systemto all disciplinary incidents, no matter how minoror serious.46 Traditionally, our criminal justicesystem has drawn distinctions in handling offensesaccording to their severity. Crimes are classifiedinto misdemeanors and felonies,' 4 with lesserpenalties for the less serious offenses, and oftenwith separate institutional facilities for housingthe two classes of offenders. Moreover, we tend toprovide greater procedural protections for thealleged serious offender than we do for the misde-meanant, presumably because of the possibility ofmore severe punishment.'"

As we have already discussed, the types of actssubject to discipline in a particular institution are afunction of the purposes of the disciplinary system.If an institution eased its rigid approach to "con-

supra. The Review reports that Sostre's offenses in-cluded "distributing copies of the Harvard Law Reviewto other prisoners."141 One of the cases presented before the Disciplinary

Board in the maximum security institution involvedan inmate who had refused to remove from his cell aprotest sign which he had carried into the dining hall.

14a See note 23 supra.145 See id.146 It is important to note that the decree did provide

that "an officer or employee observing minor violationsshould handle such incidents tactfully and firmly bywarning and counselling." Furthermore, an amendmentto the decree isued by Judge Pettine, provided for amore informal "two-night lock-up" procedure forminor disciplinary infractions. See note 150 infra. It isclear, however, that such informal procedures can bethe subject of severe abuse without proper stafftraining and attitudinal changes.147 Indeed, the Model Penal Code establishes four

categories of offenses differentiated according to thepunishment permitted. MODEL PENAL CODE § 1.04(1)(1962).

14 Cf. the "petty offense" doctrine for jury trials.See Singer v. United States, 380 U.S. 24, 33 (1964);Low v. United States, 169 F'. 86 (6th Cir. 1909).

trol," some acts presently handled through theformal disciplinary process, particularly many ofthose resulting from inmate-guard altercations,could be handled in different manners. Staffpersonnel could be trained to handle these situ-ations non-punitively. As with the policeman inpotential riot situations, the prison staff should betrained to play down minor situations and not toescalate them through their own words or actions.'This does not mean that the staff member shouldusurp the Disciplinary Board's function; rather itmay require the staff member occasionally totolerate or ignore an inmate's abusive remark. Ifsuch minor incidents do reach the DisciplinaryBoard, the Board should not always feel bound toreach a "disciplinary decision" and impose someform of punishment. Taking "no action" in suchcases may be in itself very significant action.

Furthermore, some matters, while serious enoughto warrant discipline, do not require full Discipli-nary Board hearings with all the attendant proce-dural protectionsj5W In these cases, dispositionaldecisions might best be made on the level of thesuperior officer or Deputy Warden after a thoroughinvestigation of all the facts and a written record ofdetailed -findings has been made. The inmateshould have the opportunity to have this decisionreviewed by the Disciplinary Board~in

"' To say that this attitudinal change would requireextensive training is an understatement. Custodialpersonnel traditionally have viewed any act of dis-obedience, however minor, as a serious threat toinstitutional order. An understandable attitude is"if we let this inmate get away with his actions, thirtyothers will follow suit." This custodial response, notwithout foundation, focuses on the central problem ofdifferentiating between actions which require punish-ments basically for deterrence purposes and ones whichdo not.1w0An example of such nondisciplinary board

discipline is the "two-night lock-up" procedure at theACI. Under this procedure, a charging officer, with thesupervision of a superior officer, could have an inmateconfined to his cell for two consecutive nights inresponse to a minor disciplinary infraction. There wasconsiderable difference of opinion as to whetherprovisions of the regulations could be construed toallow such discretionary disciplinary action. In responseto this confusion, as well as to inmate complaints aboutthe abuse of the two-night lock-up procedure (through"piggybacking" consecutive two-night lock-ups),Judge Pettine amended his decree to formalize thetwo-night lock-up procedure. The amendment givesthe inmate "the option of a written charge and subse-quent appearance before the Disciplinary Board, oradministrative loss of institutional privileges for aperiod of up to two nights." The amendment also limitsthe number of such options available to the inmate tothree incidents per month, after which time the in-mate must appear before the Disciplinary Board,1w Such an option for Disciplinary Board review is

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A fundamental problem with such a two-tieredapproach to disciplinary action would be differ-entiating between cases which require formalhearing before the Disciplinary Board and thosewhich would not. Perhaps the most appropriatestandard for allocating the responsibility for thedecision would be according to the potentialseverity of the punishment-1 2 This does not meanthat a detailed list of penalites must be prescribedfor each type of misconduc; 153 rather, the non-Disciplinary Board dispositional authority wouldbe limited to minor punishments, such as a denial ofprivileges for a short period of time. In casesinvolving potentially severe dispositions, such asextended segregation and/or the loss of good time,the inmate would be afforded the more extensiveprocedural safeguards provided by Board hearings.

C. The Closed Nature of the Prison Setting.

Traditionally prisons are isolated and of lowvisibility to the outside world. This pervasive"closed" atmosphere has diverse effects upon theprison disciplinary system. The closed nature ofthe institution makes it inevitable that DisciplinaryBoard members bring personal knowledge of eachinmate to the hearings. Although, in many in-stances this personal information may have somedispositional value, often it taints the proceedingswith unfair prejudice.

Furthermore, an inmate who chooses to defendhimself vigorously by directly challenging aguard's veracity may, because of the nature of theinstitution, find himself subject to harmful andperhaps unanticipated repercussions.5 4 Unlikethe court defendant, who may never again comeinto contact with the arresting officer, in mostinstances the inmate must return to his same cell orshop area, under the supervision of the officer whosecharge brought him before the Disciplinary Board,and whose credibility he has challenged. Withproper training and restraint, an officer of theinstitution may learn to disregard this challenge.

similar to that option effected by the amended decree'stwo-night lock-up procedure. The inmate should bemade aware of the fact that the Disciplinary Board isnot limited in its possible disposition of the case, as isthe superior officer who handles the action informally.

162 For cases employing other two-tiered approachesto prison disciplinary procedures, see note 42 supra.

15 See note 115 supra, for a discussion of fixed versusindividualized punishment.

I" Clearly, to the extent that the inmate anticipatessuch unfortunate repercussions, he may be deterredfrom actively defending himself and challenging thecharging officer's version of the facts.

It is at least equally possible, however, that anoffended officer may harass and- intimidate theinmate, especially in those rare cases where theinmate has, in effect, won at the DisciplinaryBoard hearing.

Moreover, the closed nature of the institutionalso allows prison personnel to discipline inmatessummarily as a means of avoiding formal proce-dural requirements with their attendant additionalpaper work. While it is very difficult for an outsideevaluator to discover the extent of unauthorizeddiscipline, we were able to get some insights on thatsubject from the inmates in our interview sample.Twenty-three inmates (38%) reported beingsubject to disciplinary action by procedures otherthan coming before the Board.155

There is little question that some discipline wasadministered contrary to the provisions of thecourt decree, but it is difficult to determine whethersuch activity increased or decreased after the newregulations. One could speculate that if membersof the piison staff resented the court's interventionand saw the decree as unduly restricting theiractions, they might respond by bypassing theformal disciplinary procedures in favor of summarydiscipline. The diversity of inmate comments onthe issue of non-Disciplinary Board punishmentleaves this question open for speculation.

D. Staff Training and Involvement

Another significant factor limiting the effective-ness of the decree was the lack of any staff involve-ment in its formulation and the lack of staff trainingwith regard to its implementation. Even thoughthe decree was based upon a consent agreementbetween the parties, that agreement did not reallyreflect the views of the employees of the ACI oreven of its supervisory staff. The agreement wasframed primarily by counsel for the Department ofSocial Welfare (who had relatively little experiencewithin the prison itself) and by the Acting Warden.

155 Segregation was usually imposed only for the moreserious types of misconduct--strike, escape, riot,suspicion of committing a crime, bribery-although itwas occasionally used for fighting, being out of place,trouble with the staff, and possession of prohibitedarticles. The two-night lock-up, however, was typicallythe preferred punishment for these latter types ofmisconduct. Further, it is interesting to note thatinmates did not mention other types of informalpunishment, such as harassment and loss of privileges.It is doubtful that there has not been at least some ofthis form of discipline. However, it is possible that theinmates interviewed might not have really thought ofsuch action as a punishment in the context of ourquestions about discipline.

1972]


The new Warden and the rest of the staff simplyinherited their work, almost by default.

The cooperation of the staff, particularly thecustodial staff, is essential for the effective imple-mentation and operation of any disciplinarysystem. The guards initially detect all disciplinaryproblems and are likely to have the most knowledgeabout the alleged infractions, as well as about theinmates involved. Because of their responsibilityfor initiating the disciplinary process, the cus-todial staff is in a unique position to bypass orabuse that process. For example, a guard maysimply ignore observed violations; he may arbi-trarily or discriminatorily report some inmates andnot others; he may exaggerate infractions in his"booking"; or he may substitute unwarrantedinformal discipline and harassment for the estab-lished processes. Furthermore, where the discipli-nary scheme includes procedural requirements, astaff member may negate, or at least undermine,the whole process by failing to comply with one ormore of the required procedures. Moreover, cor-rectional officer cooperation is essential because ofthe crucial effect that the conduct of custodialpersonnel has on the inmates' view of the prisonsystem.

1 56

The ACI staff resented the fact that they had notbeen involved in the framing of the Morris decree.Some custodial personnel expressed such strongresentment to the court's intervention and theirnon-involvement in that process that they refusedto read the copy of the regulations which had beendistributed to them. One staff member commented:

There is some confusion as to who is running theACI, the Warden or Judge Pettine. Judge Pettine'sintervention is important to bring attention to theinadequacies in corrections, but he must act inconjunction with the Warden. Many aspects ofthe new regulations apply more to a larger institu-tion than to the ACL

The staff urged that if there is a new or final decreethe court should work directly with the ACIadministrative and custodial staff in framing itsprovisions. "Without such cooperation;" anotherstaff member commented, "the decree will be

156 Cf. What Do Administrat ire and ProfessionalStaffs Think About Their Correctional System, CoR-RECTIONAL EsEARCH, Bulletin No. 17, Part Two (May,1968), at 2. Respondents to the study were "in generalagreement that correctional officers do, indeed, exceedall other categories of staff members in the extent oftheir influence on prisoners; 311 (85%) of the 366respondents expressed that opinion."

composed in a vacuum and will be extremelyimpractical in its application to the ACT."

Another source of resentment, which may havein turn affected. the degree of staff compliance withthe regulations, was the custodial staff's reluctantrecognition of inmate rights and the burdensomeproblem of enforcing these rights. Officials andguards alike began to view the court not as animpartial arbiter, but as an advocate for theinmates. Administrators resented the repeatedtrips to court to defend themselves against inmatecharges, not only because they felt that theirrightful discretion was being fettered, but alsobecause of the amount of time they were requiredto spend away from the prison. Some of the guardsfelt that the decree had resulted in a tremendousloss of discipline and control by easing the discipli-nary penalties and hence decreasing the factor ofdeterrence. A typical comment was, "Officers arereluctant to book because they think the guy willonly get a reprimand." The fact that the penaltieswere less onerous, they felt, tended to underminetheir authority as did the repeated threats byinmates to take every complaint directly to thejudge. Furthermore, because of the increasedamount of paper work necessary for entering abooking or an infraction, officers were said to beless inclined to make such bookings.

Somewhat paradoxically, the guards also felt theregulations should be more detailed and definitive.Custodial staff felt trapped by some of the vague-ness in the decree, especially about when a prehear-ing lock-up was permitted.Z57 Moreover, some of thesupervisory administrative staff felt that theguards were afraid of the decree because of thepossibility of contempt proceedings and the possi-bility of being censured in open court.5 3 In aneffort to counteract this adverse custodial reaction,Judge Pettine went to the prison and met with theguards. He emphasized that he expected that therewould be a good faith attempt to comply with thedecree, and that he was not concerned with tech-nicalities. However, he was met with some hostilityand a great deal of dissatisfaction. 59

157 See note 67 supra for discussion of the confusioncreated by the decree's provision for locking up in-mates.

168This fear was heightened by Judge Motley'sdecision in Sostre v. Rockefeller, 312 F. Supp. 863(S.D.N.Y. 1970), which awarded compensatory andpunitive damages against prison officials for violationof an inmate's civil rights. On appeal, punitive damageswere disallowed. Sostre v. McGinnis, 442 F.2d 178 (2dCir. 1971), cert. denied, -U.S.-- (1972).159 For example, one guard stated at the meeting,

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This custodial antagonism clearly indicates thatin addition to involving staff in formulation ofdisciplinary policy and procedures, 6 ' once thesystem is developed, extensive staff training isessential for any effective implementation. Severalmembers of the supervisory staff felt that thecustodial officers were confused by the new regu-lations. As one supervisory official commented:

The old guard must be re-educated toward morerehabilitative approaches. Any officer who hasbeen with tle ACI for ten years or more has atendency to -think more in terms of discipline.Thirty out of eighty officers in maximum havebeen within the ACI for ten years or more-fifty-five out of eighty for more than five years. Theremust be an extensive training program developedfor all officers.

In the final analysis, the success or failure of anynew correctional program depends upon the under-lying attitudes of the custodial as well as theadministrative staff toward the change. Wherethere is antagonism, no amount of care in draftingmeticulous provisions and structuring intricateprocesses will achieve the objective of a fair andimpartially administered disciplinary system.

E. Inadequate Facilities and Resources

Perhaps the most pervasive limitation whichplagues the ACI is the inadequacy of its resources.Due to the structural limitations of the ACI'smaximum and medium-minimum security in-stitutions, inmates of vastly different criminalbackgrounds and degrees of institutional "ad-justment" are all lumped together. These inade-quate living conditions, compounded by the almostcomplete absence of training programs, exacerbatedisciplinary problems. Where resources allocatedby the state legislature remain entirely inadequate,any judicial decree, however thoughtfully designed,cannot remedy these fundamental ills which go tothe very core of the prison disciplinary system.

V. A CONCLUDING Loox AT THE CounT's ROLE

We began this study by stating that we wouldexamine not only the decree's effect on the discipli-nary process at the ACI, but also the effectivenessof the court as an institutional mechanism for

"We find it impossible to run this place under thesefoolish rules which we had nothing to do with making."1 0 Inmate views should also be solicited. Inmatecomplaints and comments were actively encouraged byJudge Pettine through sealed, written communicationsas well as through court appearances.

assuring fairness in administrative decision-making,particularly in the prison context. Courts would-not seem particularly well-suited for such a taskfor a number of reasons.

First, American courts' 6' are designed primarilyfor resolving factual controversies. Each party inthe adversary system presents those facts whichbest support his contentions. The judiciary is notsuitedforremedyingmanagerial and administrativeproblems, such as the design of prison disciplinaryprocesses, which involve multiple and complexpurposes and require extensive consultation withthe affected staffs and inmate populations. as wellas subsequent training and supervision of personnel.Usually, the court has before it only what relevantevidence the parties present, and party presen-tations will probably be inadequate for a task as"many-centered"''2 as the development of aprison disciplinary system.

Second, being limited to the evidence presentedby the parties before it, most courts will lack theexpertise necessary to understand the uniqueproblems of discipline within the prison context.While such expertise may not be necessary for theresolution of a particular case of abuse, it is de-sirable for the broader fashioning of policies andregulations for the institution.

Third, any such decree requires a massiveburden of supervision. The load of litigation onJudge Pettine was so great that he virtually had toset up a special calender for prison cases, eventhough the ACI is a relatively small institution.

However, these reasons are not as controlling asthey might first appear. Courts have increasinglyextended class actions, declaratory judgments, and

161 Both Italy and France have judges with specificresponsibility for prison matters. In Italy, he is calledthe surveillance judge and he has "the responsibility ofregularly visiting the penitentiaries within his jurisdic-tion and seeing that they are being administeredaccording to law." Mueller, Punishment, Correctionsand the Law, 45 NEB. L. R.v. 58, 96 (1966). Here, theappointment of such a judge would probably requirelegislation, although a judge for prisons might arise byjudicial fiat if the presiding judge of the jurisdictionsimply calendared all prison cases to a particular judge.

162 Professor Lon Fuller developed in detail the ideathat "many-centered" or "polycentric" problems arenot suitable for judicial resolution. Fuller, CollectiveBargaining and the Arbitrator, 1963 Wis. L. Rxv. 3. Hestates:

If an optimum solution [to these problems ofmanagerial direction] had to be reached throughadjudicative procedures, the court would have hadto set forth an almost endless series of possibledivisions and direct the parties to deal with each inturn.

Id. at 33.

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the use of the expertise of special masters.1" Inaddition, many courts have not been reluctant tosolicit the advice of experts, if necessary. judgePettine consulted and received comments from anumber of penologists with national experience.Furthermore, the court may obtain aid in itssupervisory task through review mechanisms suchas those previously discussed."' However, thecritical reason why courts must continue to in-tervene in inmates' rights cases is because no viablealternative exists. Legislatures have been con-sistently unresponsive to prison needs. 165 Citizens'commissions seem to respond only to crisis situ-

6 In addition, under the Federal Magistrates Act,there seems to be some latitude for utilizing a magistratein this connection. The relevant provision, found in 28U.S.C. § 636(b) (1970), reads as follows:

(b) Any district court of the United States, bythe concurrence of a majority of all the judges ofsuch district court, may establish rules pursuant towhich any full-time United States magistrate, or,where there is no full-time magistrate reasonablyavailable, any part-time magistrate specially de-signed by the court, may be assigned within theterritorial jurisdiction of such court such additionalduties authorized by rule may include, but are notrestricted to...

(3) preliminary review of applications for post-trial relief made by individuals convicted of criminaloffenses, and sunnission of a report and recommen-dations to facilitate the decision of the district judgehaving urisdiction over the case as to whether thereshold bea hearing. [emphasis added].

4 See note 129 supra.165It is to be remembered that inmates do not

constitute a voting constituency.

ations, fading into the background when theflare-up is over. The courts often provide the onlycontinuing outlet for the hearing of grievances andthe solution of conflicts concerning correctionaladministration. 66 And while judicial solutions maynever be fully implemented, at least they maysucceed in eliminating extreme abuses, or perhapsmore optimistically, in setting a model and a tonefor eventual internal reform by the prisons them-selves.

Our study has documented and evaluatedjudicial intervention in one particular correctionalinstitution. Although much of our analysis wouldapply to other institutions, further empiricalresearch is necessary, analyzing conditions and theremedial effects of judicial intervention in otherprisons. However, the death of forty-two inmatesand guards at the correctional institution inAttica, New York, is a tragic reminder that re-search is simply not enough. If Attica is to behistory rather than precedent, active interventionby concerned and knowledgeable correctionalofficials and legislators as well as courts is essentialto effect long overdue institutional reform.

66As Fuller has stated: "I am not here assertingthat an agency called a 'court' should never under anycircumstances undertake to solve a 'polycentric'problem. Confronted by a dire emergency, or by aclear constitutional direction, a court may feel itselfcompelled to do the best it can with this sort of prob-lem." Fuller, supra note 162, at 34.

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judicial intervention in prison discipline

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