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by Peter Wagner and Jana Schroeder, June 6, 2004

To: Joint Committee on Agency Rules Review
From: Jana Schroeder, American Friends Service Committee
& Peter Wagner, Prison Policy Initiative
Cc: James Guy, DRC
Date: January 6, 2004

Re: DRC Disciplinary regulation proposal (Proposed AR 5120-9-06, 5120-9-07, and 5120-9-08)

We have several technical and substantive concerns with the Proposed Administrative Rules 5120-9-06, 5120-9-07, and 5120-9-08 governing the inmate rules of conduct and disciplinary procedures.

The DRC has proposed a significant change to the regulations in two respects:

  • A radical reorganization of the disciplinary process that does not put prisoners on notice as to what to expect and instead placing considerably more discretion on individual staff members in defiance of the JCARR specificity requirement.
  • A repeal of specific enumerated rights given to prisoners by the existing regulations

Technical concerns:

The DRC’s Rule Summary and Fiscal Analysis is neither complete nor accurate, and the proposed rules should be rejected on that basis.

1. The DRC’s zero cost estimate is unsubstantiated and unrealistic.

These changes will significantly impact the number of disciplinary convictions and resulting sentence length at great cost to individual prisoners and the taxpayer.

Prison disciplinary convictions entail a loss of privileges within the prison and go into a prisoner’s file for classification purposes which in term affects parole eligibility and overall sentence length.

It is hard to envision that these changes would not impact the number of prisoners found guilty of rule infractions, which would create a very real cost to individual prisoners. Likewise each disciplinary conviction that results in an increase in sentence length would have a cost to the taxpayer of $59.92 per prisoner per day, or $21,872.26 per prisoner per year.

While it is possible that the DRC believes that the change will have no impact on the rate at which prisoners are found guilty of disciplinary infractions or sentence length, the DRC has submitted no evidence to suggest that the DRC has even considered this very expensive possibility beyond a proforma “no cost” statement.

2. The rescission and new rule RFSA for 5120-9-06 fails to summarize the changes and the rationale.

The new rules mark a significant change in the disciplinary process by removing fundamental protections for prisoners present in the current regulation. The deleted policy statement guided rule application. It required that that punishment be proportional to the offense, with prior notice of the rules and for the rationale to be explained to the prisoner. The deletion suggests that, at a policy level, the Department wishes to repeal, as it applies to prisoners, the entire principle of due process. This was never disclosed to JCARR in the RFSA. (See appendix for the relevant original text.)

The RESCISSION RSFA for the disciplinary rules (5120-9-06) summarizes the rule only as “The rule governs the inmate rules of conduct.” The NEW RFSA says “The rule governs the inmate rules of conduct. The rules are clarified and they are no longer split into two classes of rules.” Although implied by the change in title from “Inmate rules of conduct and statement of policy of institutional rules” to “Inmate rules of conduct”, the DRC does not explain why they abolished the separate classes of rules, nor does the DRC even disclose to JCARR that the statement of policy was repealed. The DRC offers as reasons in question 6 only “The rule is being proposed to update, clarify and simplify the inmate rules of conduct.”

In early comments to the DRC and forwarded to JCARR, we have argued that this statement is inaccurate on its face, for the rules are neither clearer nor simpler. But it must be beyond dispute that the DRC’s filing fails to accurately describe the regulations being submitted to JCARR.

The rules should be rejected for the failure of the DRC to prepare ” a complete and accurate ‘Rule Summary and Fiscal Analysis’ of the proposed rule” as required by JCARR.

Substantive concerns:

While the DRC has considerable discretion to run its facilities, some of these proposed changes undermine the legislature’s intent to provide for clear administrative rules. JCARR requires that the “rules should provide clarity of wording so that the affected public is able to understand the rules. There should also be adequate specificity in delineating the procedures to be followed and the standards with which to adhere.”

This need for clear regulations is made more critical by the fact that prisoners are among the least educated portions of our population. Ohio-specific figures were not available, but nationally, one in 7 prisoners lack more than an eighth grade education. Forty-three percent of prisoners lack even a high school diploma or a GED.<span
class=”footnotereference”>[1]

The existing regulations are difficult to understand, but the proposed regulations are worse. The effected population of prisoners will be hard pressed to understand their rights and responsibilities under these proposed regulations.

The rules are unclear on a structural level, they omit required due process procedures, they are vague in definition, and they are highly duplicative. The result is “rules” that violate the legislature’s mandate to create clear rules.

1. The rules are unclear on a structural level.

The rules do not offer “clarity of wording so that the affected public is able to understand the rules” as required by JCARR. The rules are less clear than the previous version, and are considerably less clear than those of other states including Massachusetts, Connecticut and the Model Code of Prison Discipline (Task Force on Revision of Discipline Procedures, State of Connecticut, Department of Correction, Professor Leonard Orland, Chairman, 1974).

a. The rules fail to describe the disciplinary process in cohesive way:

Most notably, the rules do not offer a clear explanation of the disciplinary process, instead offering 3 separate regulations:

  • 9-06 listing rules;
  • 9-07 discussing the procedure of reporting prisoner misconduct and the actions of the hearing officer; and
  • 9-08 discussing the role of the Rules Infraction Board.

(The DRC has proposed a fourth regulation, security control, that we do not discuss here.) These disciplinary rules should be all in the same document with a clear structure to explain their purpose.

The regulations should be organized in a linear fashion that would allow someone to readily understand the order and significance of the relevant parts of the process from offense, to conduct report, to the hearing officer, RIB and administrative review.

b. The proposed regulations eliminate the difference between type II and type III offenses, leaving staff and prisoners without guidance on the relative significance of various acts.

Although the nomenclature currently used in Ohio is less than ideal, the concept of having two levels of offenses exists in every state we know of as well as in the Model Code of Prison Discipline.

Called in most state prison regulations “major” and “minor” offenses, they are conceptually analogous to the valuable distinction in our criminal law of the difference between felonies and misdemeanors.

In the criminal law, the legislature prescribes possible sentences for different crimes and creates the distinction between felonies and misdemeanors. Under the old common law rules, calculating the weight of a crime was something done after the fact by a judge. Justice was not uniformly dispensed. The criminal law created by legislatures gives society and judges structure and puts citizens on notice. The DRC’s proposed changes gives all the discretion to the hearing officer and negates any expectation of a predictable process. In result, the DRC is proposing rules that will be impossible to uniformly interpret, follow, and apply; meeting the very definition of a confusing rule.

The current rule reads:

“(A) There shall be two classes of rules, each with a different maximum penalty for a violation.

“(B) Class II rules shall include those rules whose violation constitutes an immediate and direct threat to the security of the institution, its staff, visitors, inmates, or the inmate who has violated the rule. Class II rules shall also include persistent violations of class III rules, where a determination is made that the penalty for class III rules violation serves no deterrent effect.

“(C) Class III rules shall include all violations of written institutional rules and regulations, as well as violations of class II rules, i.e., a class II rules violation may be dealt with as a class III rules violation.” (Current 5120-9-06)

This distinction has been eliminated and both prisoners and staff are left to guess as to how it should be implemented.

In a December 22 memo to Jana Schroeder, the DRC defended the change by imagining new provisions not present in the proposed rule:

“I don’t believe that categorizing the rules as major or minor is ultimately a helpful concept. Inmates are expected to conform to all the established rules not just the major ones. The proposed rules are fact based and therefore are not enhanced by an artificial designation of major or minor. An assessment of the harm caused by an individual’s actions is more determinate of the penalty imposed than some artificial designation.”<span
class=”footnotereference”>[2]

In reality, there is no mandate in the proposed rule to assess the harm caused by an offense. In fact, the proposed rule does not provide any instruction on how to determine the appropriate penalty. This omission, in combination with the deletion of the policy statement, leaves prisoners and staff with no guidance on its implementation. As the rule is therefore impossible to implement, it should be rejected by JCARR.

2. The regulations omit fundamental requirements of due process, contrary to JCARR’s requirement of specificity.

In the process of gutting the policy statement, the DRC also removed the most basic requirement of due process: The right to be notified of proscribed conduct. The proposed regulations no longer contain a requirement that rules and consequences be published and distributed to prisoners. (See Richardson v. Coughlin 763 F Supp 1228 (SDNY 1991) and the non-prison Supreme Court case Grayned v. City of Rockford: “because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” 408 U.S. 104 (1972).) This protection is not in the proposed rule.

Similarly, the U.S. Supreme Court in Wolff v. McDonnell (418 U.S. at 564) was very clear that prisoners must be given written notice of the charges and at least twenty four hours to prepare for a disciplinary hearing. This is not stated explicated in the regulations, instead stated obliquely in a discussion of the Hearing Officer’s obligation to inform prisoners of their procedural rights:

“(a) Time of hearing. The inmate has the right to a period of time of no less than twenty-four hours after the service of the conduct report before his or her appearance at the RIB.” (proposed 5120-9-07 (H)(2))

The DRC is assuming that staff will know that the legal definition of service is to give actual written notice. This requirement should be stated explicitly and in a proper chronological order.

3. The rules are vague in definition and implementation.

The rules fail to adequately define offenses so that prisoners can be on notice.

Rule 45 could have many meanings, but it is difficult to interpret the rule in a way that would not also prohibit working for Ohio Penal Industries or attempting to arrange post-release employment:
:

“(45) Dealing, conducting, facilitating, or participating in any transaction, occurring in whole or in part, within an institution, or involving an inmate, staff member or another for which payment of any kind is made, promised, or expected.”

The rules are also vague in implementation. For example, rule 43 prohibits refusal to submit urine for drug testing, but does not define that refusal. Does the DRC intend to punish the inability to produce urine on demand? Today, drug testing is common in and outside of prison. The rules for prisoners should be modeled on outside rules that define “refusal” by the amount of time and amount of liquid that is provided.

5. The rules are highly duplicative, which makes them confusing. On this, the proposed rules are a step backwards from the current rules.

The goal of this regulation is to give prisoners notice of the rules, and guidance to staff in guiding prisoner behavior. Duplicative charges make the policy difficult for prisoners to digest and difficult for staff to implement uniformly. Because the policy does not prohibit multiple charges or multiple guilty findings arising from the same act, there is also the possibility of giving a prisoner a higher punishment than the actual act warranted.

Redundancy makes the rules more confusing rather than less, and less complete rather than more. For example, the proposed regulations make separate rule violations to “cause physical harm”, to “cause serious physical harm”, and to “cause physical harm with a weapon”. We assume the Department does not mean to suggest that another combination, causing serious physical harm with a weapon, would be acceptable behavior; yet the policy reads otherwise. This omission illustrates that proliferating rules for every imagined situation runs counter to the Department’s and Legislature’s intent to provide an orderly institutions.

The most efficient procedure would be to combine duplicative rules and to create a specific regulatory instruction to hearing officers that wherever more than one rule covers the same act, the charges should be consolidated into the most serious charge. The hearing officer should determine the severity of the punishment in accordance with the severity of the act(s) and not with the technical number of rules violated. None of these common sense suggested principles are in the proposed rules.

We made numerous suggestions to the DRC prior to the filing on how to combine the proposed rules to make them simpler, but these comments were not incorporated into the proposed regulation before you. With edits as small as two words, the following rules could easily be combined:

  • Rules 3, 4 & 5. Causing or attempting to cause physical harm.
  • Rules 6 & 7. Throwing material and bodily fluids
  • Rules 8 & 9. Threats.
  • Rules 11, 12, 14 & 24e Non-consensual sexual contact and conduct
  • Rules 20, 21, 22 & 23. Refusal to follow orders
  • Rules 28 & 34. Forged documents for escape or other purposes
  • Rules 29, 30, 31, 32 & 33. Escape. (This is a very broad category ranging from the possession of contraband to leaving the facility without permission and many things in between. Arguably it would be useful, if only for the purposes of a prisoner’s institutional record to have different types of “escape” charges, however as currently constructed all of these are so vague that without the full facts behind the charge a parole or classification officer would be hard pressed to compare the relative severity of these 5 rules.)
  • Rules 36, 37 & 38. Weapons
  • Rules 39 & 40. Drugs

Conclusion

JCARR should not approve the proposed administrative rules 5120-9-06, 5120-9-07, and 5120-9-08 governing the inmate rules of conduct and disciplinary procedures for two reasons. First, the DRC has failed to submit a complete and accurate Rule Summary and Fiscal Analysis. Second, the proposed rules are confusing — more so than the current rules — in structure and in detail, violating the legislature’s intent for the DRC to craft clear rules to govern their institutions. The existing rules are superior and should be maintained.

Thank you for the opportunity to present our views on this important matter of prison disciplinary procedures. If we can provide any additional information or clarification, please do not hesitate to contact us.

Sincerely,

Jana Schroeder
American Friends Service Committee
Ohio Criminal Justice Program
(937) 278-4225, Ext. 107

Peter Wagner
Prison Policy Initiative

Appendix:

The DRC’s undocumented repeal of the due process, fundamental fairness and the rehabilitative ideal

The current policy reads:

(H) Institutional rules: Rules governing the conduct of offenders and the consequences which may follow from a violation shall be printed and furnished to the inmates together with any explanations that may be necessary for their guidance. Rules shall be corrective, not abusive or punitive, in purpose. They shall be no more numerous or restrictive than is necessary to produce responsible and orderly conduct, and be related to valid institutional concerns.

(I) Discipline: Enforcement of institutional rules shall be for the purpose of developing patterns of behavior which will be of help to the inmate in his future adjustment in the free community, and the maintenance of order in the institution. Enforcement of institutional rules shall be rehabilitation oriented, and for the purpose of developing self-control and self-discipline. No action shall be taken against an inmate for the violation of a rule except in accordance with established disciplinary procedures. Use of correctional cells with deprivation of cell privileges as punishment is authorized but should be used only when clearly necessary.

(J) Restrictions on personal privileges: Disciplinary restrictions on clothing, bedding, mail, visitations, or the use of toilets, washbowls, and showers may be imposed only following an inmate’s abuse of such privileges or facilities or when such action is deemed necessary by the managing officer for the safety or security of the institution, or the well being of the inmate, and shall continue only as long as is absolutely necessary.

The equivalent text in the draft regulation circulated by the DRC prior to JCARR filing:

(E) Institutional rules: rules governing the conduct of offenders and the consequences which may follow from a violation shall be published and made readily available to inmates. Rules shall be corrective, not abusive or punitive, in purpose.

The equivalent text in the proposed regulation before you:

None

Footnotes:

[1] Sourcebook of Criminal Justice Statistics 2001, Table 6.29/span>

[2] Memorandum from T. Austin Stout, Asst. Chief Counsel for DRC to Jana Schroeder, AFSC. December 22, 2003, page 1.

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