Baker v. Beto Supplemental Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 72-2471

JAMES E. BAKER, et al.,
Appellants,

vs.
GEORGE J. BETO, et al. ,

Appellees.

On Appeal from the United States District Court 
for the Southern District of Texas

SUPPLEMENTAL BRIEF FOR APPELLANTS

WILLIAM BENNETT TURNER 
12 Geary Street
San Francisco, California 94108
JACK GREENBERG STANLEY A. BASS 
10 Columbus Circle 
New York, New York 10019
MARIO OBLEDO 
ED IDAR
211 East Commerce Street 
San Antonio, Texas 78205
JAMES DeANDA
PHILLIP K. MAXWELL
P. 0. Drawer 480
Corpus Christi, Texas 78403
FRANCES T. F. CRUZ 
5135 Val Verde Lane 
Houston, Texas 77027
ALICE DANIELUniversity of CaliforniaHastings College of the Law198 McAllister StreetSan Francisco, California 94102
Attorneys for Appellants



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................  iii

I. Appellants' Previous Submissions ..............  1
II. Present Status Of The Case —  Effect

Of Preiser v. Rodriguez ......................  3
III. Recent Decisions Bearing On The

Issues In This C a s e ........................ .. 4
A. Due Process Safeguards ....................  4
B. Special Cases In Which Prisoners

Are Accused Of In-Prison Felonies ........  12
C. Censorship of Attorney-Client M a i l ........  13
D. Refusals To Mail Attorney L e t t e r s ........  15

CONCLUSION . . . . . . . . . .  ........  . ..........  17

APPENDIX A
National Advisory Commission on Criminal 
Justice Standards and Goals, Standard 2.12 
(January, 1973)

APPENDIX B
Model Rules and Regulations on Prisoners 
Rights and Responsibilities (May 8, 1973)

APPENDIX C
Model Rules and Regulations on Prisoners 
Rights and Responsibilities (May 8, 1973)

APPENDIX D
National Advisory Commission on Criminal 
Justice Standards and Goals, Standard 2.17 
(January, 1973)

ii



TABLE OF AUTHORITIES

CASES Page

» Allen v. Nelson, 354 F.Supp. 505
(N.D. Cal. 1973) 5

Barlow v. Amiss, F.2d ,
No. 72-2401 (5th Cir. AprTTo, 1973) 14

Batchelder v. Geary, F.Supp. ,
No. C-71 2017 RFP (N.D. Cal. AprTT6, 1973) 5
Carter v. McGinnis, 351 F.Supp. 787 
(W.D. N.Y. 1972) 12

Castor v. Mitchell, 355 F.Supp. 123 
(W.D. N.C. 1973) 5

Chambers v. Mississippi, U.S. ,
93 S.Ct. 1038 (Feb. 21, 1973) 10

Clutchette v. Procunier, 328 F.Supp. 767 
(N.D. Cal. 1971) 12

Colligan v. United States, 349 F.Supp. 1233 
(E.D. Mich. 1972) 5, 12

Collins v. Hancock, 354 F.Supp. 1253 
(D. N.H. 1973) 5, 12

Crowe v. Erickson, Civ. 72-4101 
(D. S.D. Dec. 1, 1972) 14

Dodson v. Haugh, 473 F.2d 689 
(8th Cir. 1973) 5, 10

# Frye v. Henderson, 474 F.2d 1263
(5th Cir. 1973) 14

Gagnon v. Scarpelli, U.S. ,
93 S.Ct. 1756 (May 14, 1973) 6, 7, 9,

Gates v. Collier, 349 F.Supp. 881 
(N.D. Miss. 1972) 5, 14

Goldberg v. Kelly, 397 U.S. 254 (1970) 6, 7, 10

10

iii



Page

Gomes v. Travisono, 353 F.Supp. 457
(D. R.I. 1973) 5

Goosby v. Osser, U.S. , 
93 S.Ct. 854 (1973) 3

Iverson v. Powelson, No. M33-71CA-2 
(W.D. Mich. Mar. 21, 1972) 14

Jansson v. Grysen, No. G-130-71 CA 
(W.D. Mich. June 5, 1972) 14

Jenkins v. United Gas Corp., 
400 F.2d 28 (5th Cir. 1968) 3

In re Jordan, 7 Cal.3d 930, 500 P.2d 873 
(Sup. Ct. Cal. Sept. 15, 1972) 2, 13

Landman v. Royster, 333 F.Supp. 621 
(E.D. Va. 1971) 10

Martinez v. Procunier, 354 F.Supp. 1092 
(N.D. Cal. 1973) 14 , 15

McDonald v. Board of Election Commissioners, 
394 U.S. 802 (1969) 3

McKenzie v. Secretary of Public Safety, 
No. 71-1414 (4th Cir. Apr. 21, 1972) 14

Merritt v. Johnson, No. 38401 
(E.D. Mich. Nov. 30, 1972) 14

Morris v. Affleck, No. 4192 
(D. R.I. Apr. 20, 1972) 14

Morrissey v. Brewer, 408 U.S. 471 (1972) 5, 6, 7,
Nelson v. Hayne, 355 F.Supp. 451 

(N.D. Ind. 1972) 5
Nieves v. Oswald, F.2d ,

No. 72-1974 (2d Cir. Apr. 20, 1973) 12
Preiser v. Rodriguez, U.S. , 

93 S.Ct. 1827 (1973) 3, 4

iv



Page

In re Prewitt, 8 Cal.3d 470,
503 P.2d 1326 (1972) 8

Rankin v. Wainwright, 351 F.Supp. 1306
(M.D. Fla. 1972) 5

Sands v. Wainwright, F.Supp. ,
12 Cr. L. Rptr. 2376 (M.D. Fla.
Jan. 5, 1973) 5, 12

Sostre v. McGinnis, 442 F.2d 178
(2d Cir. 1971) 13

Stewart v. Jozwiak, 346 F.Supp. 1062
(E.D. Wis. 1972) 5

State ex rel Thomas v. State,
55 Wis.2d 343, 198 N.W.2d 675 (1972) 16

United States ex rel Miller v. Twomey,
___ F.2d ___, No. 71-1854 (7th Cir.
May 16, 1973) 5, 9

United States ex rel Neal v. Wolfe,
346 F.Supp. 569 (E.D. Pa. 1972) 5

Van Blaricom v. Forscht, 473 F.2d 1323
(5th Cir. 1973) 7

Washington v. Lee, 390 U.S. 333 (1968),
aff»g 263 F.Supp. 327 (M.D. Ala. 1966) 3

Worley v. Bounds, 355 F.Supp. 115
(W.D. N.C. 1973) 5, 13

v



OTHER AUTHORITIES Page

Model Rules and Regulations on Prisoners 
Rights and Responsibilities, Center for 
Criminal Justice of the Boston University 
School of Law, May 8, 1973

National Advisory Commission on Criminal 
Justice Standards and Goals, January 1973

11, 15

Standard 2.12 11
Standard 2.15 15
Standard 2.17 15
Standard 2.2 15

Turner and Daniel, Miranda in Prison: The 
Dilemma of Prison Discipline and Intramural 
Crime, 21 Buff. L. Rev. 759 (1972) 2

vi



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 72-2471

JAMES E. BAKER, et al.,
Appellants,

vs.
GEORGE J. BETO, et al.,

Appellees.

On Appeal from the United States District Court 
for the Southern District of Texas

SUPPLEMENTAL BRIEF FOR APPELLANTS

In accordance with the Court's order of May 14,
1973, setting this case for en banc consideration and directing 
the Clerk to require supplemental briefs, appellants file 
this supplemental brief.

I. Appellants' Previous Submissions

This brief is intended only to supplement our 
previous submissions, which include the following:

- 1 -



(1) Brief for Appellants, served August 11, 1972.
This is appellants' main brief and contains a thorough
statement of facts, completely documented by citations to

1/the record.
(2) Reply Brief for Appellants, served October 3,

1972, relating in relevant part to certain clearly erroneous 
findings by the court below, together with copies of the 
then unreported decision in In re Jordan, 7 Cal.3d 930,
500 P .2d 873 (Sup. Ct. Cal. Sept. 15, 1972).

(3) Letter to the Clerk from counsel for appellants, 
dated November 20, 1972, noting pertinent cases decided or 
reported after the above briefs had been filed.

(4) Appellants' Comments On Disciplinary Procedures 
Submitted By Appellees At Oral Argument, served on December 14, 
1972, pursuant to leave of the Court granted at oral argument, 
together with copies of a relevant law review article published 
at 21 Buff. L. Rev. 759 (1972).

We respectfully urge the Court en banc to consider 
all the above submissions, which fully state our factual and 
legal contentions.

1/ By order of the Court dated July 25, 1972, leave to proceed 
on the original record and exhibits, without an appendix, 
was granted.

- 2 -



II. Present Status Of The Case —  Effect Of Preiser v. Rodriguez

Since the argument before a panel of this Court, 
appellant James E. Baker has been released from prison.
Fred Cruz had previously been released. We have been informed 
that appellant Coy Ray Campbell has received a favorable 
ruling on a habeas corpus petition, but his present status 
is unclear. Of course, this action has been maintained as 
a class action on behalf of all TDC prisoners, and it makes 
no difference on this appeal that individual parties may have
been released. See Goosby v. Osser, ___ U.S. ___, 93 S.Ct.
854, 856, n.2 (1973); McDonald v. Board of Election Commissioners, 
394 U.S. 802, 803, n.l (1969); Washington v. Lee, 390 U.S.
333 (1968), aff'g 263 F.Supp. 327 (M.D. Ala. 1966); cf.
Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968).

The individual appellants originally sought, by way 
of relief, restoration of their statutory good time forfeited 
in disciplinary proceedings. Because of their release, Baker 
and Cruz no longer seek such relief; if appellant Campbell is 
released, this claim might also be moot as to him. In any 
event, we recognize that the recent Supreme Court decision in
Preiser v. Rodriguez, ___ U.S. ___, 93 S.Ct. 1827 (1973),
forecloses a claim for restoration of good time unless the 
prisoner proceeds via habeas corpus and alleges prior 
exhaustion of state remedies. The decision in Preiser v.
Rodriguez does not, however, otherwise affect any aspect of

-3-



this case. The Supreme Court repeatedly made it clear that
only where the prisoner is challenging "the very fact or
duration" of his custody and seeks "immediate or more speedy
release" must he proceed in habeas corpus and first exhaust
state remedies. 93 S.Ct. at 1841, 1838, 1840. In cases
like the present one in which "the prisoners' claims [relate]
solely to the States' alleged unconstitutional treatment of
them while in confinement," the prisoners may properly invoke
§1983 and proceed without exhausting any possible state

2/remedies. 93 S.Ct. at 1841. The relief sought in the 
present case is a declaratory judgment and an injunction 
against disciplinary proceedings in which punishments are 
imposed without due process, and a declaratory judgment and 
an injunction against censorship of attorney-client 
correspondence.

Ill. Recent Decisions Bearing On The Issues In This Case

A. Due Process Safeguards

It is now well settled, and indeed the Attorney 
General has conceded as much, that before prison officials 
can punish a prisoner by imposing more onerous conditions of 
confinement (solitary confinement) or a longer term of

2/ In this case, the state has not contended either that there 
is a state remedy or that appellants should have tried to 
find one.

- 4 -



incarceration (deprivation of statutory good time and
eligibility for parole), the prisoner is entitled to a hearing

3 /meeting "minimum" standards of due process. In short, it 
is settled that these consequences of prison disciplinary 
proceedings are serious enough to require a hearing that will 
reliably determine the facts, so that prisoners are not 
arbitrarily punished. This alone requires reversal of the 
decision below. The remaining question, and a question of 
great importance, is precisely what are the minimum safeguards 
of due process in prison disciplinary hearings.

In Morrissey v. Brewer, 408 U.S. 471 (1972), the 
Supreme Court held that parolees are entitled to "minimum" 
standards of due process before parole may be revoked, and

3/ In addition to the numerous cases cited at pages 21-24
of the Brief for Appellants, see the recent decisions in 
Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973); United
States ex rel Miller v. Twomey, ___ F.2d ___, No. 71-1854
(7th Cir. May 16, 1973); Worley v. Bounds, 355 F.Supp. 115, 
120-22 (W.D. N.C. 1973); Castor v. Mitchell, 355 F.Supp.
123 (W.D. N.C. 1973); Collins v. Hancock, 354 F.Supp.
1253 (D. N.H. 1973); Sands v. Wainwright, ___ F.Supp. ___,
12 Cr. L. Rptr. 2376 (M.D. Fla. Jan. 5, 1973); Rankin v. 
Wainwright, 351 F.Supp. 1306 (M.D. Fla. 1972); Colligan 
v. United States, 349 F.Supp. 1233 (E.D. Mich. 1972);
Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1972);
United States ex rel Neal v. Wolfe, 346 F.Supp. 569 (E.D. 
Pa. 1972); Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D. Wis.
1972); Batchelder v. Geary, ___ F.Supp. ___, No. C-71
2017 RFP (N.D. Cal. Apr. 16, 1973). Cf̂ . Nelson v. Hayne, 
355 F.Supp. 451 (N.D. Ind. 1972); Allen v. Nelson, 354 
F.Supp. 505 (N.D. Cal. 1973); Gomes v. Travisono, 353 
F.Supp. 457 (D. R.I. 1973).

-5-



specified that the following constituted such minimum 
requirements:

"(a) written notice of the claimed violations 
of parole; (b) disclosure to the parolee of 
evidence against him; (c) opportunity to be 
heard in person and to present witnesses and 
documentary evidence; (d) the right to confront 
and cross-examine adverse witnesses (unless 
the hearing officer specifically finds good 
cause for not allowing confrontation);
(e) a 'neutral and detached' hearing body 
such as a traditional parole board, members 
of which need not be judicial officers or 
lawyers; and (f) a written statement by the 
factfinders as to the evidence relied on and 
reasons for revoking parole." 408 U.S. at 489.

Essentially the same safeguards were described as "rudimentary"
to due process in the Court's earlier decision in Goldberg v.
Kelly, 397 U.S. 254 (1970). In Goldberg, the Court held in
addition that the right to retained (although not appointed)
counsel is rudimentary. The Court in Morrissey left open
whether the right to counsel is among the minimum requirements.
The Court answered this question in its recent decision in
Gagnon v. Scarpelli, ___ U.S. ___, 93 S.Ct. 1756 (May 14, 1973)
In Gagnon, the Court held that both probationers and parolees
have a right to counsel in appropriate cases. Deciding also
that all the Morrissey rights must be observed in probation
revocations, including the right to call and cross-examine
witnesses, the Court said that arguments against the right
to counsel overlook the fact that the effectiveness of the
rights guaranteed by Morrissey may "depend on the use of
skills which the probationer or parolee is unlikely to possess,

- 6 -



and referred to the obvious fact that "unskilled or uneducated"
persons like prisoners cannot realistically be expected to 
protect their own interests without help from a "trained 
advocate." 93 S.Ct. at 1762-3. While the Court stopped short 
of holding that counsel must be appointed in all cases, it 
required counsel at least in cases in which the prisoner 
makes a timely and colorable claim that (1) he did not commit 
the alleged violation or (2) there are substantial mitigating 
or justifying factors and the evidence is complex or difficult 
to present; the agency must also advise the prisoner of the 
right to request counsel, consider whether he "appears to be 
capable of speaking effectively for himself," and document 
the reason for any refusal to afford counsel. 93 S.Ct. at 
1764 .

We submit that the "minimum" safeguards of Morrissey,
Gagnon and Goldberg are also the "minimum" required in prison

4/
disciplinary proceedings. The Attorney General has suggested 
no reason why any of these safeguards is not required here.
It must be recognized that the consequences of disciplinary

4/ In VanBlaricom v. Forscht, 453 F.2d 1323 (5th Cir. 1973), 
this Court held that the failure of a parole board to 
permit the prisoner to cross-examine adverse witnesses 
violated his due process rights. The court also held 
that the board had failed to state adequately the reasons 
for its decision and that this violated the prisoner's 
right under Goldberg v. Kelly, even though the prisoner 
had been represented by counsel at the hearing.

-7-



proceedings can result in much greater deprivation of liberty
than parole revocation. A Texas prisoner who is "convicted"
of a serious offense in a disciplinary proceeding can forfeit
several years of good time in a single disciplinary proceeding
(correspondingly increasing his actual period of imprisonment),
or can be made ineligible for parole, but a parole revocation
may have less serious consequences. For example, a prisoner
might forfeit three years of good time as disciplinary
punishment while a parolee with only, say, a year to serve
on his maximum sentence would lose only that period in a
parole revocation. Nor has the Attorney General here
identified anything in the nature of disciplinary proceedings
or in the respective interests of the State or the prisoner
that makes a Morrissey-Gagnon "minimum" safeguard dispensable

5/
in resolving disputed facts in the present context.

5/ In In re Prewitt, 8 Cal.3d 470, 503 P.2d 1326 (1972), the 
California Supreme Court held that a prisoner faced with 
rescission of a parole grant order is entitled to all 
of the Morrissey protections. The court perceived "no 
significant distinction" between the situation of the 
parolee faced with revocation of conditional liberty and 
the unreleased prisoner faced with rescission of the right 
to achieve such liberty. 8 Cal.3d at 474, 503 P.2d at 1330. 
Prewitt thus requires in-prison Morrissey hearings in all 
disciplinary cases in which the inmate has received a 
parole date but has not been released. The California 
Supreme Court carefully considered the state's interest in 
summary proceedings and found that the prisoner's interest 
in fair procedures prevailed. There is no distinction 
between disciplinary cases in which the prisoner has 
received a parole date and those in which he is prohibited 
from receiving one if found guilty of the disciplinary 
offense. In Texas, a prisoner found guilty of a disciplinary 
offense may be demoted to a class in which he is absolutely 
ineligible for parole (R. 399, p. 5; R. 237, 319).



In United States ex rel Miller v. Twomey, ___ F.2d
___, No. 71-1854 (7th Cir. May 16, 1973), the Seventh Circuit,
after carefully examining the interests of the state and the
prisoners in several disciplinary cases, held that Morrissey
requires due process protections before imprisonment can be
prolonged or punitive segregation imposed in disciplinary

6/hearings. However, the court declined, over a vigorous and 
persuasive dissent by Chief Judge Swygert, to require all of 
the Morrissey safeguards, and the court left the precise form 
of relief to the district courts on remand. The majority of 
the Seventh Circuit panel did recognize that "in the end we 
may simply transplant the Morrissey requirements" to prison 
disciplinary hearings (slip op., p. 27, n.37). The panel 
said the district courts could require all the Morrissey 
safeguards, but directed the lower courts to hold special 
hearings on relief, first giving the officials an opportunity 
to prepare new procedural regulations. We believe that, 
while the district court's decision in the instant case must 
be reversed, this Court, acting en banc, should not leave the 
court below without precise guidance as to the "minimum" due 
process safeguards. There is no point in a ruling by the 
Court en banc that does not definitively settle this issue

6/ The Miller opinion was apparently prepared before the 
Supreme Court's decision in Gagnon v. Scarpelli, supra, 
and the court had no occasion to discuss whether counsel 
would be required in appropriate cases.

- 9 -



now. As stated above, we believe all of the Morrissey
safeguards, and a limited right to counsel or counsel- 

77substitute, are constitutionally mandated, and the Court 
should make that clear.

These safeguards are mandated, however, only in
the relatively few disciplinary cases in which (1) the most
serious punishments may be imposed and (2) there is a genuine
dispute as to the facts. Obviously they are not required in
minor matters or in cases in which there is no dispute about
what happened. Disciplinary procedures must be adequate to
permit a determination that "they were likely to have
established the truth of the asserted violation." See Dodson

8/
v. Haugh, 473 F.2d 689, 690 (8th Cir. 1973). This cannot 
be done with less than the "minimum" procedures of Morrissey, 
Goldberg and Gagnon.

7/ As stated in the Brief for Appellants at pages 27-31,
counsel is required at least in cases in which a prisoner 
is accused of conduct that can be prosecuted as a felony; 
and any disciplinary hearing that results in a prisoner 
becoming ineligible for parole certainly requires, under 
the reasoning of Gagnon v. Scarpelli, that the prisoner 
be represented by counsel. Counsel-substitute (a staff 
member, a law student or a fellow prisoner) might be 
sufficient in less serious cases.

8/ Cf. Chambers v. Mississippi, ___ U.S. ___, 93 S.Ct. 1038
(Feb. 21, 1973), where the Supreme Court relied on 
Morrissey for the proposition that confrontation of 
witnesses is essential to assure "the accuracy of the 
truth-determining process." Of course cross-examination 
may be restricted by the hearing officers "to relevant 
matters, to preserve decorum, and to limit repetition." 
Landman v. Royster, 333 F.Supp. 621, 653 (E.D. Va. 1971).

- 10 -



In addition to the many judicial decisions discussed 
above and in the Brief for Appellants, we rely on the Standards 
promulgated in January, 1973, by the National Advisory 
Commission on Criminal Justice Standards and Goals. The 
recommendations of this prestigious Commission completely 
support our position; in particular, Standard 2.12 requires 
all of the "minimum" due process safeguards we have specified.
A copy of such Standard is reproduced as Appendix A to this 
brief.

In addition, on May 8, 1973, the Model Rules and 
Regulations on Prisoners Rights and Responsibilities were 
published by the Center for Criminal Justice of the Boston 
University School of Law. The Model Rules and their useful 
commentaries require all the "minimum" safeguards. The 
relevant Rules, including Foreward and commentaries, are 
reproduced as Appendix B to this brief. In the Foreward, 
the Commissioner of Corrections of Massachusetts emphasizes 
that the Rules are not simply an idealist's notion of 
prisoners' rights but are "a long overdue instrument for 
the development of sound correctional policy," provide "a 
viable blueprint from which a sound correctional management 
system can be constructed," and are "an invaluable tool" for 
officials striving to build "systems that operate fairly, 
thoroughly, and effectively."

- 11-



B. Special Cases In Which Prisoners Are
Accused Of In-Prison Felonies

As urged in the Brief for Appellants at pages 40-44, 
special protections are required in the really serious 
disciplinary cases, like the case of appellant Baker, when 
prisoners are accused of in-prison felonies. In addition to 
the authorities relied upon in the Brief for Appellants, there 
are several recent decisions in point. In Collins v. Hancock, 
354 F.Supp. 1253 (D. N.H. 1973), the court held that if the 
disciplinary offense is also a felony, counsel must be 
furnished and in no event can the accused prisoner's testimony 
be used against him in a subsequent criminal proceeding. In
Sands v. Wainwright, ___ F.Supp. ___, 12 Cr. L. Rptr. 2376
(M.D. Fla. Jan. 5, 1973), the court followed the decision in 
Clutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971), 
and held, in addition, that when the disciplinary offense 
also constitutes a crime, the prisoner must be given "use 
immunity". In Colligan v. United States, 349 F.Supp. 1233 
(E.D. Mich. 1972), the court required all due process 
safeguards and stated in addition that the accused has the 
right not to be forced to testify. In Carter v. McGinnis,
351 F.Supp. 787 (W.D. N.Y. 1972), the court, relying on 
Clutchette v. Procunier, supra, held disciplinary proceedings 
unconstitutional because prisoners who elected to remain 
silent were given serious disciplinary punishment. And in 
Nieves v. Oswald, ___ F.2d ___, No. 72-1974 (2d Cir. Apr. 20,

- 12-



1973) , the court stated that when a prisoner faces a 
disciplinary offense that also constitutes a crime, this

9 /"unquestionably raises grave constitutional issues."

C . Censorship Of Attorney-Client Mail
In addition to the authorities cited on pages 44-56

in the Brief for Appellants, numerous recent decisions undercut
the reasoning of the court below and follow the approach of the
Federal Bureau of Prisons and of other state systems in insuring

10/
the confidentiality of attorney-client mail. California's
Supreme Court has carefully considered the practicalities of 
legal mail and stopped its censorship. See In re Jordan,
7 Cal.3d 930, 500 P.2d 873 (Sup.Ct.Cal. 1972). And a number 
of recent federal decisions can be added to the long list of 
courts that have condemned censorship of attorney-prisoner 
mail. See Worley v. Bounds, 355 F.Supp. 115, 118-19

9/ The court distinguished and cast doubt on the continuing 
validity of its prior decision in Sostre v. McGinnis,
442 F.2d 178 (2d Cir. 1971), on which appellees here rely.
The Second Circuit stated that Sostre cannot be read as 
holding that the safeguards rejected on the facts of that 
case will not be constitutionally required in other cases.
For example, the court pointed out as to cross-examination 
that Sostre must be distinguished because the facts were 
not in dispute there and this right is critical in cases 
in which the facts are in dispute or punishment turns on 
the perceptions of adverse witnesses.

10/ The Federal Bureau's regulation provides that "correspondence 
addressed to an attorney shall be mailed from the institution 
unopened and uninspected" and that incoming attorney 
correspondence may only be opened "for the purposes of 
inspection for contraband. . .in the presence of the 
inmate" (see Brief for Appellants, p. 52). Similar 
approaches of other state systems are described in the 
Brief for Appellants and the many decisions granting 
protection to attorney mail are collected at p. 54, n.58.

-13-



(W.D. N.C. 1973); Gates v. Collier, 349 F.Supp. 881 (N.D. Miss.
1972); Merritt v. Johnson, No. 38401 (E.D. Mich. Nov. 30,

lT71972); Crowe v. Erickson, Civ. 72-4101 (D. S.D. Dec. 1,
1972); Iverson v. Powelson, No. M33-71CA-2 (W.D. Mich. Mar. 21,
1972); Jansson v. Grysen, G-130-71 CA (W.D. Mich. June 5,
1972); Morris v. Affleck, No. 4192 (D. R.I. Apr. 20, 1972);
cf. McKenzie v. Secretary of Public Safety, No. 71-1414
(4th Cir. Apr. 21, 1972 )(consent decree); Martinez v.
Procunier, 354 F.Supp. 1092 (N.D. Cal. 1973)(applying First

12/
Amendment standards to general mail).

In short, the weight of authority holding that 
attorney-client mail must be confidential is overwhelming.

11/ The order in Merritt is very detailed and gives careful
consideration to the practicalities of permitting officials 
to inspect for physical contraband without reading the 
contents of attorney mail. Outgoing mail to attorneys 
may be sealed; incoming mail can be examined only for 
physical contraband (using a fluoroscope, metal detector 
or manual manipulation) and if an official has reasonable 
grounds to suspect that illegal material is contained, 
the letter can be opened, but only in the inmate's presence.

12/ This issue is still one of first impression in this
Circuit. In Barlow v. Amiss, ___ F.2d ___, No. 72-2401
(5th Cir. Apr. 30, 1973), the court held that pretrial 
detainees stated a valid federal claim with regard to 
censorship of legal correspondence. Pretrial detainees 
are not differently situated from TDC prisoners charged 
or indicted for in-prison crimes, whose attorney 
correspondence is censored (see Brief for Appellants, 
pp. 47-48).
In Frye v. Henderson, 474 F.2d 1263, 1264 (5th Cir. 1973), 
the court remarked that "Actual censorship of attorney- 
inmate mail -- be it incoming or outgoing —  might very 
well infringe unconstitutionally in the prisoner's rights 
of access to the courts."

-14-



In addition to the judicial decisions discussed above and
in the Brief for Appellants, the Model Rules and Regulations
on Prisoners Rights and Responsibilities also provide for
such confidentiality. The relevant Rules, including their
commentaries, are reproduced as Appendix C to this brief.
Finally, the Standards of the National Advisory Commission
on Criminal Justice Standards and Goals also provide for
confidential attorney correspondence. Standard 2.17, providing
that even as to general mail "neither incoming nor outgoing
mail should be read or censored," is reproduced as Appendix D 

13/
to this brief.

D. Refusals To Mail Attorney Letters

The Texas officials assert the right not only to 
read attorney-client mail in all circumstances but also to 
refuse to deliver legal letters that they deem not "relevant" 
to the prisoner's case or "derogatory" to the officials. In 
addition to the authorities discussed at pages 57-58 of the 
Brief for Appellants, and by the American Bar Association in 
its brief amicus curiae, the recent case of Martinez v. 
Procunier, 354 F.Supp. 1092, 1097 (N.D. Cal. 1973), holds 
that "statements critical of prison life and personnel cannot

13/ Included in Appendix D are related Standards:
Standard 2.15 deals with prisoners' rights to

free expression and association in general; and
Standard 2.2 deals with access to legal services 

and specifically provides for confidential 
attorney-prisoner correspondence.

-15-



be subject to censorship by the very people who are being
14/criticized simply to stifle such criticism." As the

American Bar Association brief points out, there is simply 
no valid basis for the TDC practice of blocking attorney 
letters because a guard disapproves their contents.

14/ This echoed a decision of the Supreme Court of Wisconsin,
which stated that "letters critical of prison administration 
cannot be forbidden because they cause embarrassment or 
inconvenience to prison authorities." See State ex rel 
Thomas v. State, 55 Wis.2d 343, 198 N.W.2d 675 (1972).
In both Martinez and Thomas the courts were dealing with 
general, not attorney correspondence. Legal mail of course 
has a greater claim for special protection.

-16-



CONCLUSION

The judgment of the district court should be 
reversed and remanded with instructions to enter a decree 
substantially in accordance with the Standards of the National 
Advisory Commission and the Model Rules annexed as Appendices 
A, B, C and D hereto.

Respectfully submitted/

^  z z _____
WILLIAM BENNETT TURNER 
12 Geary Street
San Francisco, California 94108

JACK GREENBERG 
STANLEY A. BASS 
10 Columbus Circle 
New York, New York 10019
MARIO OBLEDO 
ED IDAR
211 East Commerce Street 
San Antonio, Texas 78205

JAMES DeANDA 
PHILLIP K. MAXWELL 
P. O. Drawer 480 
Corpus Christi, Texas 78403

FRANCES T. F. CRUZ 
5135 Val Verde Lane 
Houston, Texas 77027

ALICE DANIEL 
University of California 
Hastings College of the Law 
198 McAllister Street 
San Francisco, California 94102

Attorneys for Appellants

-17-



A p p e n d ix -  A

CO RRECTIO N S

For /Cores
STANDARD 2.12

DISCIPLINARY PROCEDURES

Each corrections! cgancy immediately should 2dopt, consistent with Standard 16.2, 
disciplinary procedures for each type of residential facility- it operates 2nd for the persons residing 
therein. . • • • •

.Miner violations of rules of conduct are those punishable by no more than a reprimand, cr 
loss of commissary, enterrammer.t, cr recreation prAdepts for not more than 2A hours. Ru.cs 
governing minor vitiations should preside:

1. Staff may impose the prescribed miner sanctions 2i't-:r Informing the offender of Use 
nature of Isis misconduct and giving him an opportunity to pro-.roe an explanation or
denial. . . .  - • •- .oj

2. If 3 report of the violation is placed in the offender’s file, the offender should be so 
notified.-

3 . Th> offender should ba provided with tine opportunity to reruest a review by an impartial 
officer or heard c f the appropriateness cf the staff 2c*.ion.

4 . V.Tere the review indicates that the offender did not commit the violation or tire staffs 
action was rat appropriate, ail reference to the incident should be removed from the 
offender's fide. . + •

Major violations c f  rules c f conduct arc those punishable by sanctions more stringent than 
those for minor violations, in clu ing but net limited to, ioss of gcoc time, transfer to segregation, 
or so’itarv confinement, trarsie; to a hasher lever ut institutional custocy cr any otner c.rar.ee m 
status which may tcr.d to affect adversely an encoder s time 01 release or discharge. - . .

Rules governing major violations should provide for the following prehearing procedures:

1. Someone ether th.c-n the reporting officer should conduct ? complete investigation into
the facts of tire alleged misconduct to determine if there is probable cause to ccheve the •
offender committed a violation. If probable causa exists, a hearing cute srrould ba set.

• • «

2. Tire offender shou-d receive a copy c f any disciplinary report or charges cf the alleged, 
violation and notice of the time and place of the hearing.

3 . Tire offender, if he desires, should receive assistance in preparing for the treating fremd •
member of the correctional staff, another Inmate, or other authorized person (inch,i-ilng 
legal counsel if available). • . .

A. Jv-o sanction for the alleged violation should be imposed until after the hearing except . 
that tire offcr.der m. y be segregated from the rest of the popu'a'.icn if the head'of the 
institution finds that l.e constitutes a threat to other inmates, staff members, or himself.

Rules ccvenring major violations iliauid provide for c hearing on the alleged viola.ion which 
should be conducted as foiiows: ' ' '

For /Cotes



CO RRECTIO N S

for.Wo res
J. The hearing should bo hole! as quickly as possible, generally not more then 72 hours after 

the charges erf made.
s

2. The hearing should be Before an Impartial officer or board.

3 . The ofter.cer shoo’d be allowed to present evidence or witnesses on his behalf.

4 . Tire offender should be allowed to confront end cross-examine the witnesses against lum.

5. The offender may be allowed to select someone, including legal counsel, to assist him at 
the hearing.

6. -The hearing officer c: board should be required to find substantia! crlder.cc cf cu2i
before imposing a sanation.

7 . Tl:c hearing effraar or beard should be required to render its decision in writing setting 
fottir its findings as to controverted facts, its conclusion, and the sanction Imposed. If th* 
decision finds that tire offender did rot commit the violation, all reference to the charge 
should be removed from the offenders fire.

Rules governing major relations should provide for interna! review of the hearing officer’s or 
board's decision. Such review should be 2u:o~tatic. The reviewing authority should be authorized 
to accept tine decision, order further proceedings, or reduce the sanction imposed.

Commentary

The nature c f  prison casrciLne ar.d the procedures utilized to Impose it are very sensitive 
issues, both to correctional administrators and to committed offender;. Tire imm.csition of drastic 
disciplinary measures c_n have a direct impact cn trie length cf time 2n offender serves in 
confinement. The history c f  inhumane and degudlrg forms of punishment, Including institutional 
•'holes” where offenders arc confined without cictltmc. bedding, toilet fzcutties, 2nd other 
decencies, has been adequately documented In the courts. These practices are stll widespread.

The administration of seme form of-discipline is necessary to maintain order Within 2 prison 
institution. However, when that discipline violates constitutional safeguards or Inhibits or seriously i 
undermines reformative efforts, it becomes counterproductive and Indefensible.

The very nature of a closed, inaccessible prison naltes safeguards against arbitrary disciplinary 
power difficult. The correctional administraticr. i:as power to authorize cr deny every 2<-ect of 
lhir.g from food ar.d clothing to access to toilet facilities. It is this pcv\ er. more than perhaps any 
other v itiur. the correctional system, v.jtich must be brought under the “rj!e of law.”

Court decisions such as Cddbcrg v. Kc'lcy, 59? U.S. 25-1 (1970) end Morrissey r. Brewer, 4CS 
U ^ . -»/l ( i 9 /_) have enab:.sited the hearing proecdure.as a basic due process requirement In 
srrniticur.t administrative deprivations ct <;ic. liberty, cr prepert}'. There ties been considerably less 
C:ar:ty, espcc.auy :n ti:c correctional context, of what minimal requirements must attend sucit a 
hearing. Court decisions l.-\e  varied In interpretation. A.i one end of the spectrum they have 
pros.arc cmy adequate nci:ce cf enarves, a reasonable investigation into relevant facts, art! an 
opportunity for the p;better to reply to charges. At the ether they have upheld the right to 
written retreo c: c.uargcs. ::-.v:mg before an in.partia! tribunal, reasonable time to prepare defense, 
riJrt to confront and crc-sv-exacrane witnesses, a decision based on evidence at tl;e l.carir.c, ar.d ’

For it'etes



CO RRECTIO N S

assistance by lay counsel (staff or inmate) plus legal counsel where prosecutable crimes are 
involved.

Correctional systems on their ov.n Initiative have implemented detailed disciplinary 
procedures incorporating substantia! portions of the recognized elements of administrative agency 
due process. The standard largely follows this trend, emanating from botii courts and correctional 
systems, toward more formaiized procedures with normal administrative due-process protections 
in the administration of correctional discipline.

Due process is a concept authorizing van ine procedures in differing contexts of governmental 
action. 1: dees net require in all cases the formal procedures associated with a criminal trios. On 
the other hur.d. cue process dees contain seme fundamentals that should regulate ail governmental 
action having a potentially harmful effect on an individual.

Basic to any system that respects fundamental fairness are three requirements: (!)  that the. 
individual understand what is expected of him so he may avoid the consequences of Lnarprupnete 
behavior; (2) if he b charged with a violation, that he be informed of what he is accused; and ^3) 
that he be given ar. opportunity to present evidar.ee in contradiction ci mitigation of the charge.

As the consequences to the individual increase, other procedural devices to assure the 
accuracy of information on widen action will re based come into play. These include the right to 
confront the individual mai-Jr.g the chare; of violation with an opportunity to crcss-c.x. mine Urn; 
the right to assistance in presenting one's case, including Icaai coon rah. the right to z formal hearing 
before an impart:;: tribunal c: officer; the rich: to have proceedings of the hearing recorded in 
writing: arc the right in written findings c f tact. .

Prison discipline cun range in degree from an oral reprimand to loss o f good time or 
disciplinary segregation. Where :h; punishment to b: imposed extends cr patenuaL'y extends the 
period c f incarceration, or substantially charges the stares of the offender either by placing him in 
disciplinary segregation cr removing him from advantageous werh assignments, the wider range of 
procedural safeguards should be employed. There decisions arc critical net only to the offender' 
but to the public. Sir.re these procedures are designed only to assure a proper factual basis for 
governmental action, both the public and the offender have an interest in their implementation.

References

1. Council cr. the Diagnosis and Evaluation of Criminal Defendants. Pdinois Unified Code of 
Corrections: Tentative Final Draft. St. Paul: West, !9 7 i, Section 335-9 and Section 
540-7.

2. H.Tscltkop and Mile maim, Tne U:consdtutioi::lity o f Prison Life, 55 Va. L. Rev. 755 
(19d9).

3. Lcndmon v. Royster, 10 Crim. L. Rptr. ECS 1 (E.D. Va. 1971! (Virginia case op hearing 
and related procedures for Imposition c f solitary confinement, transfer to maximum 
security, padlock confinement c . er i 0 d>v s and loss cf good time.)

•4. McGee. Thomas A.. ‘'Minimum S:arda:ds for • Disciplinary Decision Making.**- 
. Unpublished paper prepared fer the CrJit'orr.ia Department cf Corrections. Sacra:.::::lo.



CORP.ECTIOMS

For Notes For Notes
5. Millemann. Prison bisripHnsr.’ Heerinzs end Procedure! D:;e Process -  Tiic Requirement 

o f a Full Adminisnerhc J/esring. 3 i Md. L. Rev. 27 (197!) arc authorities cited therein.
v

6. Morris r. Trariur.o, 310 F. Supp. 857 (D.R.!. 1970) (Due process safeguards fer discipline 
involving segrcg2t.on).

7 . Soshe v. McGinnis. 442 F. 2d 178 (2d Cir. 1971) (Due process safeguards for cases of 
substantial discipline).

8. South Carolina Department of Corrections. 77/e Emerging Rig?:is o f Offenders. Columbia, 
1972.

9 . Turner, Es’cbiLCinz :!.c Ride o f Lev: in Iriscns: A Nenue! f jr  Prisoners’ Rights' 
Lingerie;:. 23 Stan. L. Rev. 473 (1971) ar.d authorities cited therein.

' Related Standards

2.2  Access to Legal Services 

2.11 Rules o f Conduct -

16.2 Administrative Justice 

1 6 3  Code of Offenders’ Rights 

5.9 Continuing Jurisdiction of Sentencing Court 

14.16 Security and Discipline



A p p e n d ix  B

MODEL
RULES AND REGULATIONS

ON

PRISONERS5 RIGHTS AND 
RESPONSIBILITIES

Prepared by

Professor Sheldon Krantz 
Robert A. Bell 
Jonathan Brant 

Michael Magruder

o f  llie

Center for Criminal Justice 
Boston University School of Law 

Sheldon Krantz. Director

B T. P A V L, ISIKH. 
W E S T  P U B L I S H I N G  CO. 

1973



FOREWORD

This com prehensive statem ent of basic inmate rights and respon­
sib ilities is a long overdue instrum ent for the development of sound 
correctional policy. Events of recent years have shown that many 
correctional system s operate with no coherent rules and policies gov­
erning inm ate behavior, or with only partially developed rules and 
regulations to assist correctional adm inistrators and staffs in the per­
form ance of their duties. This lack of coherent rules and policies has 
been a m ajor source of strife in institutions throughout the country  
and has forced the courts increasingly to become involved in the ad­
m inistration of prisons.

N ow , and for the first tim e in any prison jurisdiction, correctional 
adm inistrators have, w ith these Model Rules and Regulations on Pris­
oners’ R ights and Responsibilities, a basic guideline by which they  
can establish their own formalized procedures for m atters such as 
disciplinary hearings and the resolution of inmate offenses. The scope 
of th is document is far greater than proposals in these two areas, how­
ever. Through its detaiied analysis and development of the areas 
of substantive rights and prohibited conduct, for example, the docu­
m ent provides a viable blueprint from which a sound correctional 
m anagem ent system  can be constructed.

Much of the unrest in the prisons of this country can be traced to 
a basic inability to m aintain open channels of comm unications am ong  
inm ates, staffs, and adm inistrators. These Rules provide helpful di­
rections for reducing dangerous tensions by providing open lines for 
the discussion and resolution of institutional problems on a continu­
ing basis.

I am grateful to Professor Sheldon Krantz and the Center staff 
for their work in the preparation of these Model Rules for the M assa­
chusetts Departm ent of Corrections. Correctional adm inistrators 
everyw here should find them  to be an invaluable tool as they strive  
to  build or rebuild correctional system s that operate fairly, thorough­
ly , and effectively.

John O. Boone 
Com m issioner of Corrections 
Commonwealth of M assachusetts

A pril, 1973

*

111

nmjmw



- l -  •-» '  t ~ -  . 1~ .'n ^ ‘. — r I ;. , ' . « - , L * t - ‘ < l~ . '*  ■'-'. m m ,.M .■>. ■»i . . . ;^ , iV .t; .1 iW tii  n m r V  wait. ..«.■»,

PRISONERS’ RIGHTS AND RESPONSIBILITIES

V. RULES AND COMMENTARY 
ON DISCIPLINARY 

PROCEDURES
General Introduction
Because maintenance of security 

is such an omnipresent factor in cor­
rectional institutions, the discipli­
nary process is one of the most im­
portant elements of prison life. Dis­
ciplinary procedures are among the 
most visible parts of the penal sys­
tem because they so vitally affect the 
lives, sentences, and attitudes of in­
mates. As a result, the procedures 
that determine how the disciplinary 
process is carried out are an integral 
part of the correctional system.

In writing a comprehensive set of 
prison disciplinary regulations, the 
Center for Criminal Justice has set 
out a number of criteria for an ade­
quate correctional disciplinary proc­
ess which these rules attempt to sat­
isfy. Primarily, rules have been de­
signed which are intended, as much 
as possible, to insure impartial and 
fair procedures throughout the disci­
plinary* process. In this regard, the 
development of a comprehensive code 
of offenses and punishments has 
been recommended in order that pro­
scribed behavior may be known by 
inmates and guards alike and even- 
handed treatment assured. In an 
earlier section, a model of that code 
has been introduced. Similarly, for 
many offenses it has been required 
that superior officers investigate al­
legations of disciplinary infractions 
brought by line officers. This is to 
provide a system of review to insure 
that only valid allegations of disci­
plinary rule infractions be brought 
to the attention of the disciplinary 
board. Further, we have recom­
mended changes in the composition

of the hearing board in order that 
the process of decisionmaking at the 
hearing stage be free of any possi­
bility that the influence of command­
ing personnel could affect the judg­
ments meted out by the board.

Throughout our work on these 
rules, we have been guided by the 
due process standards for prison dis­
ciplinary procedures which have 
been required by decisions of the 
federal courts in recent years. 
These court decisions have attempt­
ed to impose standards of fundamen­
tal fairness which insure that the 
disciplinary process can determine 
guilt or innocence and impose pun­
ishments with speed, accuracy, and 
rationality. The U. S. Bureau of 
Prisons correctly stated the attitude 
which the courts have taken in re­
viewing the conditions of prison dis­
ciplinary procedures: “No judicial 
decision precludes appropriate disci­
plinary action for misconduct that is 
imposed in a fair manner. Adverse 
court decisions have been found­
ed mainly upon what appears to have 
been arbitrary and capricious ac­
tions resulting in unwarranted loss 
of privileges or the imposition of un­
duly harsh physical conditions of 
confinement.” * The courts and 
commentators have begun to take a 
closer look at prison disciplinary pro­
cedures because of a growing sense 
that current procedures and lack of 
accountability invite abuse of such 
power. As the President’s Commis­
sion on Law Enforcement and Ad­
ministration of Justice argued, “It is 
inconsistent with our whole system 
of government to grant such uncon­
trolled power to any official, particu­
larly over the lives of persons. The 
fact that a person has been convict­
ed of a crime should not mean that

* U. S. Bureau of Prisons, Policy 
Statement 700.5 Inmate Discipline (July 
20. 1970).

155



MODEL RULES AND REGULATIONS

he has forfeited all rights to demand 
that he be fairly treated by offi­
cials.” *

In addition to being designed to 
insure accountability and fairness, 
these rules are developed as a work­
able set of procedures which permit 
all views to be presented in a mean­
ingful fashion, provide the necessary 
flexibility required for a set of disci­
plinary' procedures, and yet can be 
utilized without long delays between 
allegation of misconduct and deter­
mination of guilt or innocence.

At the same time, we have been 
cognizant of the needs and concerns 
of correctional officials for insur­
ing that adequate security is main­
tained. We have attempted to pro­
pose rules which will insure the 
requisite degree of security but 
make the disciplinary process fair.

During the time that these rules 
were in preparation, the Massachu­
setts Department of Correction is­
sued Commissioner’s Bulletin 72-1, 
dated May 12. 1072. setting out re­
vised disciplinary procedures, which 
were to be implemented on an inter­
im basis. This Bulletin establishes 
procedures which are similar in 
many respects to the procedures rec­
ommended by these rules. For ex­
ample, when violations other than 
petty offenses are reported, shift su­
pervisors must be notified. The 
sh ift supervisors will review the dis­

ciplinary report for accuracy and 
completeness. Further, the proce­
dures for disciplinary hearings sig­
nificantly are similar to those rec­
ommended here since they include 
the right by inmates to call witness­
es if advance notice is given, and 
representation for the inmate and 
the institution if desired, and a find­
ing based upon reliable evidence. 
However, as will be discussed infra, 
the proposed rules here would change 
the composition of the hearing board 
and permit cross-examination, as well 
as describing in greater detail the 
appeal process. In addition, the 
Commissioner’s Bulletin uses a sin­
gle disciplinary officer to hear minor 
matters with right of appeal to the 
disciplinary board for de novo hear­
ing. The rules proposed here would 
provide for the original hearing be­
fore the disciplinary board, but the 
rules also recommend consideration 
be given to the feasibility of replac­
ing the disciplinary board altogether 
with a professional hearing officer. 
Finally, the proposed rules permit ex­
pungement of disciplinary records if 
further disciplinary infractions are 
avoided for a period of time. There 
is no comparable section in the Com­
missioner's Bulletin.

A comparison of Commissioner’s 
Bulletin 72-1 and 71-7 reveals that 
the new disciplinary policy moves to­
ward the goal stated here of clearly 
articulated and fair procedures.

* President's Commission on Law En- Right to Treatment for Prisoners: So- 
forcement and the Administration of cicty’s Right to Self-Defense, 50 Neb.L. 
Justice, Task Force Report: Corrections Rev. 543 (1971).
83 (1967). Cf. Comment, A Sfctufory

Rule V - l  Rulcbook
a. A  rulebook containing all chargeable offenses and listing the 

range of potential punishm ents for each offense, and the disciplinary  
procedures to be followed, shall be compiled and given to each inmate 
and m em ber of the staff. The rulebook shall be translated into Span-

156



PRISONERS’ RIGHTS AND RESPONSIBILITIES

ish and all other foreign languages spoken by a significant number of 
inm ates.

Commentary
The purpose of providing a rule- 

book listing specific offenses and 
penalties is to insure that all mem­
bers of the prison community—in­
cluding both inmates and guards— 
understand exactly which activities 
are proscribed and what the result­
ant penalty may be for any offense. 
The present disciplinary code for 
Massachusetts enunciated in Com­
missioner’s Bulletin 71-7 presents an 
extremely vague, nonspecific listing 
of potential offenses and in no way 
attempts to correlate offense and 
disposition. The proposed substan­
tive disciplinary code included in 
these materials, based in part on an 
empirical study of the results in all 
disciplinary proceedings held during

the past year at Massachusetts Cor­
rectional Institutions in Walpole, 
Norfolk, and Concord is an attempt 
to insure that the process of initiat­
ing complaints against inmates will 
be based upon activities which both 
officer and inmate know to be pro­
scribed. The experience from other 
studies indicates that formulation of 
clear rules does alleviate difficulties 
which arise from the enforcement of 
vague or unwritten disciplinary 
rules.3 Adoption of a rulebook of 
prison disciplinary offenses is fur­
ther recommended here because 
there are indications that the com­
pilation of such a rulebook will be 
required by the courts as part of the 
due process standards applicable to 
prison disciplinary procedures.4

> Note. Administrative Fairness in 4 Sinclair v. Henderson. 331 F.Supp. 
Corrections. 1559 Wisconsin L.Rev. 557. 1123 (E.D.La.1971). Cf. Lcr.drr.cn v.

Royster. 333 F.Supp. 621 (E.D.Ya.1971).

Rule V—2 Charging, Investigation, Pre-H earing Detention (Aw aiting  
A ction)

a. Except for the category of petty offenses listed in the code 
of offenses where slight sum m ary punishments m ay be imposed, line 
officers m ust present allegations of violations of the disciplinary code 
lo  their superior officer. The superior officer shall investigate the 
factual circum stances and shall determine w hether a charge should be 
brought and which offense, if any, is appropriate to charge. If a 
charge is brought, the superior will fill out the appropriate form, set­
ting  forth his understanding of the facts of the situation, including 
date and tim e of day of the incident, naming the line officer who 
brought the allegations originally, and listing the offense which is 
charged. Superior officers m ay initiate complaints them selves w ith­
out seeking approval from other persons.

b. A  line officer bringing a complaint against an inmate who 
believes that the inm ate should be placed in detention prior to the  
hearing m ust im m ediately seek approval from his superior officer. 
The superior officer or a higher ranking correctional officer are the  
only  persons who m ay approve detention before a hearing. N otice of 
the detention must be sent to the superintendent of the institution

157



-----IX *  I * * * - * * - * ^ * -  v : t 7  - ; A  ------- -  . ' t  - 1 . .1-l-..-*:;/ . - U —

MODEL RULES AND REGULATIONS

w ho m ust approve the detention action within tw enty-four hours 
a fter  it has begun. The superior officer and the superintendent shall 
not approve detention before a hearing unless they determ ine that 
the inm ate constitutes an immediate threat to institutional order or 
the safety  of particular inmates. Inm ates shall not be held in pre- 
hearing detention longer than three days, the permissible period be­
fore a hearing is required to be held except when the accused requests 
th e  autom atic three-aav continuance (See Rule V -3) or in an emer­
gency situation (Rule V - l l )  which m ay m ake longer detention nec­
essary.

Commentary

Charging and Investigation. When 
a line officer observes conduct 
which he regards as a violation of 
the disciplinary rules, he has sev­
eral choices: he can ignore the con­
duct, let the inmate off with a warn­
ing, impose summary punishment 
for certain specified petty offenses, 
or write up a disciplinary report.5 
Because of this wide range of choices 
which the line officer has, there is 
always the possibility that he may 
not act in a consistently fair man­
ner in all situations. If that were 
so, the postulated goal of evenhanded 
treatment would not be approached.

The purpose of requiring that su­
perior officers be the persons who 
have the authority to file charges is 
to insure immediate review of deci­
sions alleging misconduct. It pro­

vides an immediate review of the ini­
tial decision to charge to insure that 
it is made fairly and is based upon 
an accurate appraisal of the inci­
dent.®

Making mandatory charging and 
investigation by a superior officer 
would be an extension of the proce­
dures currently dictated by the 1971 
Commissioner’s Bulletin.* The Bul­
letin permits such an investigation 
where one is considered necessary. 
By making superior officer investi­
gation and charging mandatory, 
Massachusetts would be following 
the precedent of regulations in sev­
eral other states* as well as a trend 
indicated by recent court decisions 
and legal commentary.9

Pre-Hearing Detention ( Awaiting  
Action). The issue of pre-trial de­
tention (awaiting action) of accused

5 K raft, P r i s o n  D i s c i p l i n a r y  P r a c t i c e s  
and P r o c e d u r e s :  I s  D u e  P r o c e s s  R e ­
quired? 47 N.D.L.Rev. 9, 26 (1970).

* Of course, the  mere existence of the 
requ irem en t th a t superior officers in­
v es tig a te  complaints does not insure 
th a t  the investigation will be conducted 
w ell. A study of the senior officers’ in­
vestiga tion  of complaints in the Rhode 
Island  prison indicated that the investi­
gation  was generally perfunctory and 
inadequa te  and failed to screen out poor 
com plain ts. Harvard Center for Crim­
inal Justice . J u d i c i a l  I n t e r v e n t i o n  in  
Prison D i s c i p l i n e ,  63 J.Crim.L.C. & P.S. 
2 0 0 ,  207 (1972).

'  See also Commissioner's Bulletin 
72-1 requiring supervisory officers to 
review the complaint.

* See. e. g., Missouri State Peniten­
tiary Personnel Informational Pamphlet 
R u l e s  a n d  P r o c e d u r e s  (1967); New Mex­
ico Penitentiary. .Memo: C l a s s i f i c a t i o n  
C o m m i t t e e  e n d  i t s  S u b c o m m i t t e e s  
(1971); Connecticut Dept, of Corrections. 
Disciplinary Procedures.

9 Brant, P r i s o n  D i s c i p l i n a r y  P r o c e ­
d u r e s :  C r e a t i n g  R u l e s ,  21 Cleve.St.L. 
Rev. 83, 86 (May 1972); M o r r i s  v. 77a- 
vtsono, 310 F.Supp. 857, 872 (D.R.I. 
1970).



-- • ■ - -• II -.r., jgr-TA ,.>• ■« •. JV-.A — -1-. ■ --Jr—* --i.

PRISONERS’ RIGHTS AND RESPONSIBILITIES

inmates raises identical issues as does 
the question of charging responsibil­
ity. The requirement that pre-hear­
ing detention be ordered by a su­
perior officer and approved by the 
superintendent provides some review 
by superior officers of the exercise 
of discretion by line officers. In the 
only judicial decision which has con­
sidered this issue directly, the U. S. 
District Court in Rhode Island held 
that pre-hearing detention could only 
be ordered by a superior officer and 
then only in strict conformance with

rules for preventive segregation. 
Furthermore, a presumption of re­
lease is to exist unless a superior of­
ficer determines that the alleged vio­
lations could constitute a threat to 
institutional order or the safety of 
particular inmates.10 Examples of 
circumstances where detention would 
be validly imposed are allegations of 
fighting, assault, and attempted es­
cape, all of which are direct threats 
to institutional order or the safety 
of other inmates.

i0 Morris v. Travisono, 310 F.Supp. 
857 (D.R.I.1970).

R ule V -3  Notice, Time Before Hearing
a. The accused shall receive notice of proposed disciplinary ac­

tion in oral form as soon as the decision to charge has been made and 
in w ritten form  as soon thereafter as possible. The w ritten notice 
shall contain a description of the specific act of misconduct which is 
alleged, the offense charged, a listing of the tim e and place for the  
hearing, and a description of the procedure by which the accused can 
obtain representation for the hearing.

b. The hearing shail be scheduled from three to five days after  
th e  w ritten notice has been given to the accused, except the inmate 
m ay request the board to schedule hearings at the earliest possible 
tim e. Priority  in scheduling hearings shall be given to inmates who 
have been detained prior to the hearing. The accused inm ate m ay ob­
tain  an autom atic continuance for an additional three-day period by 
request to the hearing board. The hearing board may, at its discre­
tion, grant additional continuances for periods of no more than three  
days w hich are necessary to insure that all parties have adequate tim e  
to  prepare for the hearing.

Commentary

Notice. Although Commissioner’s 
Bulletin 71-7 currently provides that 
inmates receive written notice of the

charges against them, the Bulletin 
does not set out with any specificity 
what the notice must contain. Be­
cause the courts 11 have been unani-

11 Nolan v. S c a f a t i ,  30G F.Supp. 1 (D. S o s t r e  v. R o c k e f e l l e r ,  312 F.Supp. 863
Mass.1969), remanded 430 F.2d 5-1S (1st (S.D.N.Y.1971) a f j ' d  in  p a r t ,  r e v .  in  p a r t
Cir. 1970); C l u t c h c t t e  v .  P r o c u r . i c r ,  325 s u b  n o m .  S o s t r e  v. M c G i n n i s ,  442 F.2d
F.Supp. 767 (X.D.Cal.1971); Bundy v. 17S (2nd Cir. 1971), c e r t .  d e n .  s u b  nom.
Cannon, 32S F.Supp. 165 (D..\ld.l971); O s w a l d  v. S o s t r e ,  405 U.S. 97S (1972).

159



i j u u « *\i w . a. *•' - UZs*

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r»fI
i

MODEL RULES AND REGULATIONS

mous In holding that the Due Process 
Clause of the Constitution requires 
that notice of the charges be given in 
prison disciplinary proceedings, the 
present nonspecific regulation in the 
Commissioner’s Bulletin is inade­
quate. The proposed regulation on 
notice does satisfy the requirements 
of due process since it makes manda­
tory listing of the offense, sum­
marizing the factual basis of the 
charge, as well as listing the time 
and place of the hearing. These re­
quirements collectively should insure 
that the inmate receives sufficient 
information to comprehend exactly 
what he did that was allegedly 
against prison regulations and to be 
able to prepare an adequate defense.

Time Requirements. The require­
ments that the hearing be scheduled

from three to five days after writ­
ten notice has been given is designed 
to insure that both sides have an 
adequate time to prepare for the 
hearing, a basic requirement of the 
minimum standard of due process 
required for prison disciplinary hear­
ings.1'- At the same time the pe­
riod is kept short to maintain a 
system of speedy hearings. In addi­
tion, the inmate who desires an im­
mediate hearing may request sched­
uling of a hearing before the normal 
three-day minimum has past. If the 
Hearing Board should be reluctant 
to grant discretionary continuances, 
especially when the inmate has been 
placed in pre-hearing detention since 
pre-hearing detention is itself a dep­
rivation of many privileges.

** Lcndman v. Royster. 333 F.Supp. See also Commissioner's Bulletin 72-1 
621 (E.D.Va.1971); Cluickette v. Pro- requiring disciplinary board hearings 
cunicr, 32S F.Supp. 767 (N.D.Cal. 1971). within 3 days.

Rule V—1 Composition of the Hearing; Board, Frequency of M eetings
a. Except when the offense charged is one of the category of 

offenses listed in the code of offenses when petty or slight sum m ary 
punishm ent m ay be imposed, a formal hearing must be held to deter­
m ine guilt or innocence of the accused inmate.

b. The hearing shall be held before a disciplinary board com­
posed of three members. Two members of the disciplinary board m ay  
be em ployees of the institution except that members of the custodial 
sta ff shall not sit on the board. The third member of the board shall 
not be an em ployee or former employee of the department but shall 
be selected from am ong a rotating group of citizens who have volun­
teered to serve on disciplinary hearing boards at the behest of the 
governor of the commonwealth. This individual shall serve as chair­
m an of the hearing board. A minimum of two votes shall be required 
for any decision by the hearing board.

c. The disciplinary board shall m eet at least tw ice per week and 
a t such other tim es as are necessary to prevent undue delays in the 
hearing of cases. N o person m ay sit on the hearing board if he was 
in any w ay involved in the incident which was the cause of the dis­
ciplinary action.

160

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i

PRISONERS’ RIGHTS AND RESPONSIBILITIES

Commentary

Requirements for Hearings. These 
regulations expand somewhat the 
requirements for holding of hear­
ings set forth in the Commissioner's 
Bulletin. The requirement that full 
hearings be held in all cases of al­
leged infringement of the discipli­
nary code except for a specified cate­
gory of minor offenses follows the 
trends of recent case law.13 The 
requirement reflects the view that 
the disciplinary process will be most 
fair and that inmates wiil best un­
derstand the process when formal 
hearings are held for most offenses.

Num ber o f Meetings. The subsec­
tion requiring that at least two 
meetings per week occur is carried 
over from the Commissioner’s Bulle­
tin with the additional proviso that 
extra meetings should be held when­
ever a backlog of pending cases may 
threaten the speedy disposition of 
cases.

Composition of the Hearing Board. 
A major change from the Com­
missioner’s Bulletin is the section re­
quiring that at least one person from 
outside the correctional system be re­
quired to sit as chairman of the Hear­
ing Board and that members of the 
custodial staff not sit on the Board. 
Both of these changes are designed 
primarily to insure that the Hearing 
Board is in a better position to make 
a reasoned judgment about the guilt 
or innocence of particular inmates.

In prisons, no less than in other 
closed institutions, there should be 
safeguards against the possibilities 
of command influence, or other pres­
sures that could influence the delib­
erations of the Hearing Board. Cus­
todial personnel are excluded because 
they are the persons in charge of 
enforcing the disciplinary rules. 
When one member of the custodial 
staff sits on the Hearing Board and 
another brings charges, there may 
be strong peer group pressures re­
quiring findings of guilt against the 
accused inmate. As one commenta­
tor has noted, "the presence of 

an outsider would give 
meaning to the substantial evidence 
requirement by avoiding institution­
al loyalties and conflict of interest 
in the decision-making’ body. More­
over, his role would undoubtedly im­
bue the inmates with a greater con­
fidence in the fairness of the sys­
tem to which they are exposed.” 14

The requirement that the chair­
man of the Hearing Board be a per­
son from outside the penal system 
is recommended for an additional 
reason besides that of insuring free 
deliberations. It is hoped that crea­
tion of a panel of outside laymen 
who will agree to spend perhaps two 
days per month sitting on discipli­
nary Hearing Boards will bring new 
discerning viewpoints to the disci­
plinary process as well as making the 
process more visible for interested 
persons outside of the institutions.15

»  Landman v. Royster,’ 333 F.Supp. vard Center for Criminal Justice, Judicial 
621 (E.D.Va.1971); Jacob, Prison Dis- Intervention in Prison Discipline. 63 J.
cipline and Inmate Risk's, 5 Harv.Civ. Crim.L.C. & P.S. 200, 210 (1972).
Rights—Civ.Lib.L.Rev. 337 (1970). For
a case requiring a hearing before any «  For a different view, see Harvard 
imposition of solitary confinement see Center for Criminal Justice, Judicial In-
Biagiarclli v. Sielaff, 349 F.Supp. 913 terver.tion in Prison Discipline, 63 J.
(W.D.Pa.1972). Crim.L.C. & P.S. 200, 211 (1972). •

14 Hollen, Emerging Prisoner’s Rights,
33 Ohio St.L.J. 1. 61-62 (1972). See Har-

161



MODEL RULES AND REGULATIONS

I t is hoped that the Governor of the 
Commonwealth will assist in the se­
lection of a panel of interested citi­
zens who will sit on the Hearing 
Boards.

Because of the important deci­
sions which this panel will make, it 
is imperative that well qualified in­
dividuals be chosen to serve. Quali­
fications could include academic 
training, demonstrated interest in 
correctional problems and experience 
in related fields. Since the time 
commitment should be on the order 
of two or three days per month, par­
ticipation will require a serious com­
mitment by members of the panel, 
but it should be feasible for many 
interested citizens to sene.

A series of orientation meetings 
should be held after the panel is se­
lected to acquaint the members with 
the procedures for conducting the 
disciplinary hearings.

A majority vote will be sufficient 
to reach a decision. Disciplinary 
hearings are not the same as jury 
Irials but are more closely akin to 
other administrative processes where 
less than unanimous verdicts may be 
reached. With the provisions for 
review described in Section V-9, 
there is sufficient protection for de­
fendants in permitting decision by 
majority vote.16

Although adoption of the Hearing 
Board system described above is rec­
ommended, serious consideration 
should be given to another proposal 
which would require statutory au­
thority to implement. This proposal 
would substitute for the, Hearing 
Boards a professional Hearing Of­
ficer.1'  The Hearing Examiners 
would be attorneys hired by the At­
torney General of the Commonwealth 
to be full-time triers of disciplinary 
offenses. The corps of Hearing Ex­
aminers would rotate among the var- 
rious correctional institutions of the 
Commonwealth spending relatively 
short periods of time, e. g.. one 
month, at each institution. The 
Hearing Examiner would have all 
necessary authority to hold discipli­
nary hearings, make findings of fact, 
and impose punishments.

By utilizing Hearing Examiners, 
the disciplinary decision making 
would be removed completely from 
the employees of the institutions and 
given to a professional trained in 
conducting hearings. All possibility 
of undue influence should be re­
moved by use of impartial competent 
Hearing Examiners who are not em­
ployees of the Department of Cor­
rection. Further study of the feasi­
bility of utilizing Hearing Examin­
ers is warranted.18

16 See Prison Reform Institute, Pro­
posed R e g u l a t i o n s  f o r  C l a s s i f i c a t i o n  e n d  
Discipline a t  V i r g i n i a  C o r r e c t i o n a l  I n ­
stitutions reprinted in U. S. H. Rep. 
Comm, on Judiciary Subccmm. No. 3. 
Correction Part III P r i s o n e r ’s  R e p r e s e n ­
tation (1972).

>* This proposal is based upon a re­
cent bill filed in the New York Legisla­
ture Assembly Bill 6257 of the 1971-2 
Regular Session.

18 Mass. Commissioner’s Bulletin 72-1 
utilized a disciplinary officer to judge 
minor matters which may be appealed 
de novo to the disciplinary board.

Rule V -5  Evidence, Standard of Proof
a. The hearing board shall adm it all evidence which is reliable 

testim ony about the facts of the incident from which the charge aris­
es. H earsay evidence shall be admitted only if corroborated by other

1G2



PRISONERS’ RIGHTS AND RESPONSIBILITIES

testim ony or authentication. All evidence must be given in the pres­
ence of the accused inm ate if he attends the hearing.

b. The board shall not adjudicate an inmate guilty  of any charge 
unless persuaded by a preponderance of the evidence presented that 
the inm ate com m itted the alleged act.

Commentary
The two parts of this section set 

out the legal standards required for 
admission of evidence and adjudica­
tion of guilt.

Standards of Adm issibility of E vi­
dence. Reliable evidence has been 
chosen as the standard for admission 
of evidence because disciplinary hear­
ings, although increasingly formal 
and adversarial, are not actual trials 
where the rules of evidence apply. 
The Disciplinary Board will be per­
mitted to hear all testimony which 
appears to be reliable and will assist 
it in determining guilt or inno­
cence.19 In effect, this means that 
although such strict evidentiary ruies 
as the best evidence rule need r.ot be 
followed precisely, testimony of dubi­
ous reliability such as rumor cannr.ot 
be admitted. Most commonly, the 
problem of reliability will arise in re­
lation to hearsay. As the rule itself 
states, hearsay can be admitted only 
if some direct testimony is heard 
tending to show the accuracy of the 
hearsay. For example, second-level 
hearsay statements by a guard that 
he heard from another that the ac­
cused inmate made an implicating 
statement would be inadmissible un­
less the guard had some direct state­
ment of the accused indicating the

accuracy of the original statement 
or unless someone who had heard 
the original admission appears to 
testify against the accused inmate. 
All evidence must be presented in 
the presence of an inmate who at­
tends the hearing to permit the in­
mate to confront his accusers.

Inmate Refusal to Attend. Un­
der the current rules, failure to 
attend a disciplinary hearing may 
in itself be cause for disciplinary ac­
tion. We believe that the inmate’s 
refusal to attend should have no evi­
dentiary value but should be seen 
merely as a waiver of his rights to 
confront his accusers. Since the 
hearing may continue in his absence, 
the inmate does not escape possible 
imposition of penalties for the origi­
nal offense. Any additional penalty 
should be merely gratuitous.

Standard of Proof. The burden 
of proof for determining guilt at 
a disciplinary hearing has been 
set as a preponderance of the 
evidence. This standard clearly 
places the burden of proof on the 
prosecution to overcome a presump­
tion of innocence for the inmate but 
should be comprehensible to laymen 
sitting on a disciplinary board and 
easily applicable in practice.50

19 See Commissioner’s Bulletin 72-1 
setting a reliable evidence standard.

*®Ho!len, Emerging Prisoners' Rights. 
33 Ohio St.L.J. 1. 61 (1972). The Har­
vard Center for Criminal Justice study 
of the disciplinary process in Rhode Is­

land concluded that the applicable stand­
ard of proof had no meaning unless the 
composition of the Hearing Board was 
changed. Harvard Center for Criminal 
Justice. Judicial Intervention in Prison 
Discipline, 63 J.Crim.L.C. & P.S. 200, 211 
(1972). •

163



IMi'fcf.T. WA, W r^mVg f ■ >■». T rSA.tr.i-. '| f i ' i i k  *-i'- ;| i ■ 1 ■ - Itf ll'

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MODEL RULES AND REGULATIONS

Rule V -6  Record, Reiusons for Decision
a. The board shall prepare a sum m ary record of the proceedings 

listing the names of all persons attending the hearing, and those giv­
ing testim ony, the nature of the charges against the inmate, and a 
sum m ary of the evidence presented by each witness. The inmate 
shall receive a copy of this sum mary and may append a statem ent 
show ing disagreem ent with any portions of the record he regards as 
inaccurate.

b. For offenses in the major category, inmates m ay request that 
a tape recording of the proceedings be made. If the inm ate desires 
to  appeal, he m ay listen to the tape and request a transcription of the 
entire or any part of the proceedings. A copy of the transcript shall 
be given to the inmate, or upon his direction, to his representative. 
The tape shall be preserved until all adm inistrative review is com­
pleted.

c. In the event that the inm ate is found guilty of the charge, 
the hearing board shall state the reason for its decision on the record. 
A ny dissent shall be noted. A statem ent of the rationale for the dis­
position shall also be stated.

d. The inmate shall receive written notice of the board’s action  
and the statem ent of the reasons for their verdict and disposition.

Commentary
Record. Except for the major of­

fenses category where more formal 
procedures shall be followed, a sum­
mary record of the proceedings shall 
be kept to provide an adequate means 
for review of the hearing. Although 
the record need not be a full tran­
script, it must provide a sufficient 
summary of the testimony that a 
reader of the record can understand 
what transpired at the hearing. The 
requirements set forth in the rules 
demand that the testimony of each 
witness be summarized.

For major offenses, it is impera­
tive that the inmates have an option 
to request that transcripts be com­
piled for later review. Tape record­
ing rather than stenography is rec­
ommended as the method for record-

*l Landman v. Royster, 333 F.Supp. 
621 (E.D.Va.1971).

164

mg the hearings because this meth­
od is appreciably less expensive.

Reasons for Decision. To insure 
that the decisionmaker’s conclu­
sions about the guilt or innocence 
of an alleged violator of prison 
disciplinary rules rest solely upon 
the proper legal foundation, most 
states, including Massachusetts, re­
quire that reasons for the deci­
sion must be given. The deci­
sion must be based on the evidence 
presented because it is “fundamental 
to due process that the ultimate de­
cision be based upon evidence pre­
sented at the hearing which the pris­
oner has the opportunity to re­
fute.”

The statement of reasons for the 
decision must be clear “though this 
statement need not amount to a full



PRISONERS’ RIGHTS AND RESPONSIBILITIES

opinion or even formal findings of 
fact and conclusions of law.” 12 No­
tice of the action should be given to 
the inmate to insure that he is in­
formed of this action and able to 
understand the basis for their deci­
sion. Since the disposition, as well

as the determination of guilt or in­
nocence, will be reviewed, the ration­
ale for the sentence where a range 
of sentencing possibilities existed 
must be stated on the record to as­
sist in later review of the proceed­
ings.

** Goldberg v. Kelly. 397 U.S. 254. 271 
(1970). Cf. Morris v. Travisono, 310 F. 
Supp. 854 (D.R.I.197C); Clutchetle v. 
Procunicr, 328 F.Supp. 7C7 (X.D.Cal.

1971). But cf. Sostre v. McGinnis, 442 
F.2d 17S (2nd Cir. 1971), cert. den. sub 
nom. Oswald v. Sostre, 405 U.S. 978 
(1972).

R ule V-7 Inm ate Right to Cross-Examine and Call Witnesses
a. The inmate may cross-examine all persons who present testi­

m ony contrary to his interests. He shall have the opportunity to 
m ake any statem ents in his own defense or in mitigation and may 
call witnesses favorable to himseif. The inmate shall inform the 
hearing board of all witnesses he wishes to call a t least 24 hours be­
fore the hearing is scheduled. The inmate shall be given an oppor­
tun ity , along with his attorney or representative, to meet with said 
witnesses no less than 12 hours before the hearing.

b. Fellow inmates may be excused from giving testimony either 
for or against the accused inmate if their testifying would endanger 
their  personal safety. The hearing board shall hold a private hearing 
to  examine any inmate who claims that his safety would be endan­
gered by giving testimony. The decision to require testimony may be 
reviewed by the superintendent at the request of the inmate who had 
requested to be excused.

Commentary
The question of whether to permit 

cross-examination by inmates at dis­
ciplinary hearings has been one of 
the most controversial issues. It has 
been litigated often with differing 
results. Some courts have feared 
that the necessary power relation­
ships in a prison would be disrupted 
if cross-examination were permitted. 
In the earliest case on the issue, the 
U. S. District Court in Massachu­
setts held: "Cross-examination of 
a superintendent, a guard, or a fel­
low prisoner would almost inevitably 
go beyond the usual consequences of 
such probing in a court. It would 
tend to place the prisoner on a level

with the prison official. Such equal­
ity is not appropriate in prison. 
And, it is hardly likely that in the 
prison atmosphere discipline could 
be effectively maintained after an 
official has been cross-examined by 
a prisoner. There are types of au­
thority which do not have as their 
sole or even principal constituent, 
rationality. Parents, teachers, army 
commanders, and, above all, prison 
wardens have the right to depend to 
a large extent (though not arbitrar­
ily) upon habit, custom, intuition, 
common sense, not reduced to ex­
press principles and other forms of 
judgment based more on experience 
than on logic . . .  A judicial

165



 ̂ /-V - »irfiA4 g;u. ,t ,, kj.i■ rfiBn 'i«m

MODEL RULES AND REGULATIONS

examination of one’s fellow prisoners 
in an atmosphere of a prison might 
easily prejudice discipline, security, 
and degree, priority and place.” 23

This statement in Nolan has 
aroused considerable contrary argu­
ment based on the notion that due 
process cannot be satisfied without 
permitting opportunities to cross- 
examine or present favorable wit­
nesses. “It is anomalous to suggest 
that the inmate should be afforded 
‘an opportunity to be heard in his 
own defense.’ while at the same time 
denying him the corollary right to 
present witnesses and cross-exam­
ine.11 In the case of Goldberg v. 
Kelly, the United States Supreme 
Court, in a case involving termina­
tion of welfare benefits, stated that, 
“in almost every setting where im­
portant decisions turn on questions 
of fact, due process requires an op­
portunity to confront and cross- 
examine adverse witnesses." 25 Pris­
on disciplinary hearings should be 
among the types of hearings when 
Goldberg protections do apply be­
cause of the serious penalties which 
can ensue from adjudications of 
guilt. “Considering the significant 
quantum of personal liberty which is 
threatened, the quasi-criminal na­
ture of the disciplinary proceeding, 
the constructive and rehabilitative 
effect of a fair disciplinary hearing, 
and the rather unique pressures and

relationships existing in prisons, it 
would seem that the requirement 
that prison disciplinary proceedings 
guarantee inmates the right to con­
frontation and cross-examination is 
well founded though novel.” 26

The issue of whether to permit 
cross-examination and calling of de­
fense witnesses presents a problem 
in balancing the legitimate needs for 
institutional security with the re­
quirements that sufficient evidence 
be presented at disciplinary hear­
ings. Cross-examination of persons 
presenting evidence against the in­
mate and the calling of defense wit­
nesses are necessary to insure that 
the Hearing Board receive a bal­
anced account of the events which 
led to the charge against the accused 
inmate. At the same time, legiti­
mate concerns for security may re­
duce. somewhat, the full exercise of 
those rights. For example, the in­
mate must give advance notice of 
any witnesses he wishes to call in 
order that their presence may be 
assured.

Thus, the Hearing Board may ex­
cuse any inmate who requests to be 
excused from testifying, at its dis­
cretion, even inmates who have 
brought charges against other in­
mates if the Hearing Board upholds 
their claim that their testifying 
would create a danger to their per­
sonal safety. Similarly, it is within

t 3  N o l a n  v. S c a f a t i ,  306 F.Supp. 1 CD. 
Mass.1969), remanded -530 F.2d 545 (1st 
Cir. 1970); cf. S o s t r e  v. M c G i n n i s ,  442 
F.2d 17S (2nd Cir. 1971), reversing in 
p a r t Sostre v. R o c k e f e l l e r .  312 F.Supp. 
863 (S.D.N.Y.1959). But cf. Bur.dv v. 
C annon, 325 F.Supp. 165 (D.Md.1971); 
M o r r i s  v. T r c v i s o n o ,  310 F.Supp. S54 (D. 
R.I.1970); C l u t c h c i t e  v. P r o c u n i c r ,  32S 
F.Supp. 767 (N.D.Cal. (1971)).

23 G o l d b e r g  v. K e l l y .  397 U.S. 254 
(1970) followed in C l u t c h e t t e  v. P r o ­
c u n i c r ,  325 F.Supp. 767 (N.D.Cal.1971).

25 Milleman, Prison Disciplinary H e a r ­
i n g s  a r . d  P r o c e d u r a l  D u e  P r o c e s s :  T h e  
R e q u i r e m e n t  c f  a  F u l l  A d m i n i s t r a t i v e  
H e a r i n g .  31 Md.L.Rev. 27, 51 (1971), cf. 
Hollen: E m e r g i n g  P r i s o n e r s '  R i g h t s ,  33 
Ohio St.L.J. 1, 70 (1972).

*■* Jacob, Prison D i s c i p l i n e  a n d  I n m a t e  
Rights, 5 Harv.Civ.Rjghts—Civ.Lib.L. 
Rev. 227, 246 (1970).

166



PRISONERS* RIGHTS AND RESPONSIBILITIES

the a u th o r i ty  o f  the disciplinary 
t r ib u n a l  to  restrict questioning to 
r e le v a n t  matters in order to preserve 
d e c o ru m  and prevent undue repeti­
t io n .* ’ These controls on the exer­
c is e  o f  cross-examination and calling 
of w itn e s s e s  should prevent the dif­

ficulties feared by the Massachusetts 
court in the section quoted earlier, 
but permit the entry of sufficient 
evidence that the Hearing Board 
may accurately determine guilt or 
innocence of the accused.*8

*1 See L a n d m a n  v. R oyster, 333 F. 
Supp. 621 (E.D.Va.l&71).

** Jacob, P r i s o n  D i s c i p l i n e  a r . d  I n ­
m a t e s ’ R i g h t s ,  5 H arv.C iv.R ights-Civ.

Lib.L.Rev. 227, 247 (1970): B rant, P r i s ­
o n  D i s c i p l i n a r y  P r o c e d u r e s :  C r e a t i n g  
R u l e s ,  21 Cleve.St-L.Rev. S3. 93 (May 
1972).

Rule V -8  Representation
a. W hen offenses other than the category of major offenses are 

charged, the accused m ay have the assistance of a representative of 
h is own choosing at the hearing. The representative m ay be a law  
student, chaplain, member of the staff, or f e l io w  inmate whom the 
accused inm ate selects and who agrees to represent the inmate at the 
disciplinary hearing. For the category of major offenses, the accused 
m ay be represented by an attorney or any other possible representa­
tive  listed above.

b. E ach institution shall conduct periodic training sessions for 
inm ates and staff who wish to learn the arts of advocacy in disci­
plinary hearings. The nam es of all persons who have completed the  
training course shall be made available to all accused inmates, but ac­
cused inm ates are not lim ited to the names on this list when selecting  
a  representative.

c. A t the discretion of the hearing board, a staff member m ay  
be appointed to present the evidence against the accused inmate.

Commentary
The current regulations enunci­

a te d  in  Commissioner’s Bulletin 7 1 -  
7  p e r m i t  inmates to select staff 
m e m b e rs  to represent them at dis­
c ip l in a ry  hearings. The proposed 
r e g u la t io n s  seek to give inmates a 
w id e r  choice of persons who may rep­
r e s e n t  them. A lawyer representa­
t iv e  is  not required because of the 
im m e n se  practical difficulties with

p ro v id in g  counsel for all inmates a t  
disciplinary hearings. IV ith esti­
mates of 90fc indigency among pris­
on inmates, it would be close to im­
possible to provide lawyer represen­
tation for inmates a t all disciplinary 
hearings.*9 Because of these practi­
cal difficulties, the courts which have 
required due process standards a t 
disciplinary hearings have shied 
away from a  requirement that in-

** Jacob , P rison D i s c i p l i n e  a n d  I n ­
m a t e s '  R i g h t s ,  5 Harv.Civ.Rights-Civ.Lib. 
L.Rev. 227 (1970).

KratU-Mod Rulti L Rts.Prlieraf Rifhtl—12 167



Jti'iHitrt.

MODEL RULES AND REGULATIONS

mates be represented by attorneys, 
but they have required that inmates 
have the opportunity to select a coun­
sel-substitute to represent them.30

The regulations proposed here give 
the inmate a choice among several 
possible representatives, including 
law students,31 fellow inmates,3-' or 
staff—33 these suggested representa­
tives are also mentioned in other 
proposed rules and regulations from 
other jurisdictions.31 Counsel is an 
available option for the category of 
major offenses because of the severe 
penalties which may be imposed up­
on findings of guilt.

Training Sessions. In addition to 
providing a wide choice of possible 
representation, the proposed regula­
tions require that each institu­
tion sponsor training sessions so 
that interested inmates and staff 
personnel may receive instruction 
in representing others at dis­
ciplinary trials. From the persons 
v,ho complete the training course 
v.-ill come a list of persons within 
the institutions who are interested 
in and trained for representing in­
mates at disciplinary hearings. In­

mates accused of disciplinary' viola­
tions will be given this list at the 
time formal notice of the charge is 
given. The accused may select a 
name from this list, but he is free 
to select another individual if he so 
chooses and that individual agrees.

Prosecution. The proposed regu­
lations provide that staff mem­
bers may be appointed at the 
discretion of the Hearing Board to 
present the evidence against the 
inmate. This role will be analo­
gous to that of the police prose­
cutor in the district courts of 
the Commonwealth in that the prose­
cutor will be a non-professional des­
ignated to present the institution’s 
case. The Hearing Board may ap­
point a prosecuting official either 
on its own initiative or at the re­
quest of the staff member who 
brought the charge against the in­
mate. It is envisaged that prosecu­
tors will generally be used whenever 
major offenses are charged and on 
other occasions when charging offi­
cers desire someone to represent 
them or when the board prefers that 
both parties are represented by coun­
sel-substitute.

I
f

«
%

C l u t c h e t t c  v. P r o c u n i c r .  32S F.Supp. 
767 (N.D.Cal.1571): M o r r i s  v. T r a v i s o n o .  
3110 F.Supp. 664 (D.R.I.1970).

31 Hollen, E m e r g i n g  P r i s o n e r s '  R i g h t s .  
33 Ohio St.LJ. 1. 60 (1972).

representation is inadequate because 
staff members are afraid to be advo­
cates for the inmates. Harvard Center 
for Criminal Justice. J u d i c i a l  I n t e r v e n ­
t i o n  in  P r i s o n  D i s c i p l i n e ,  63 J.Crim.C. 
&P.S. 200,205 (1972).

31 See J o h n s o n  v. Avery, 393 U.S. 483
(1969).

33The study of the disciplinary proc­
ess in Rhode Island indicated that staff

34 California Assembly Bill No. 2904 
(1971 Regular Session). Nat. Legal Aid 
and Defender Assn., P r o p o s e d  R e v i s i o n s  
f o r  L o r t o n  C o r r e c t i o n a l  Complex (1971).

Rule V -9  Review
a. A ny finding of guilt and any disposition m ay be appealed to 

the superintendent. The appeal must be requested within 4S hours. 
N o sentence shall take effect until the superintendent has reviewed  
the decision of the hearing board. The inmate m ay subm it a written  
statem ent for the superintendent's consideration. The superintendent

168



if, i ■ dk mhAca&A fc4U itTUrtli—rrfara

PRISONERS' RIGHTS AND RESPONSIBILITIES

shall receive a copy of the sum m ary record or transcript compiled by 
th e  board plus any statem ent submitted by the inmate and shall base 
his decision on this inform ation. He shall reverse the conviction if it 
w as not based upon a reasonable assessm ent of the evidence presented. 
In the interests of justice he m ay also order further or new proceed­
ings or reduce or suspend the actions of the board. In no circum-

.> ’ stances m ay he increase the severity of the disposition imposed. W rit-
. ten  notice of the decision shall be given to the inmate. The sentence

as determ ined or affirm ed by the superintendent shall be imposed aft- 
er notice is given to the inmate. If the inm ate is in pre-hearing de­
tention, the superintendent m ust act within 4S hours or the inmate 
is to be released.

b. W ithin 48 hours after notice of the superintendent’s decision 
is given to  the inm ate, he m ay appeal to the commissioner by filing 
an appeal form which will be provided along with the notice of the 
superintendent’s decision. The comm issioner shall review the m a­
terial subm itted to the superintendent and any additional statem ent 
provided by the inm ate. The com m issioner may act to affirm or mod­
ify  the decision in the sam e m anner and upon the same standards as 
m ay the superintendent.

Commentary
This proposed regulation formal­

izes the procedures permitting ad­
ministrative review currently stated 
in the Commissioner's Bulletin.
It provides for opportunities for 
review by the institution superin­
tendent and by the commissioner.
Each of these reviews shall consider 
whether the verdict of guilt was

R ule V -10  Em ergency
a. In the event of a widespread em ergency which threatens life  

and property and seriously disrupts the functioning of the institution, 
the superintendent m ay order immediate detention of any inmate for 
a period up to 4S hours. If the cause of the em ergency extends be­
yond 48 hours, continued detention m ust be authorized in writing by

c ’ the com m issioner.
b. Upon restoration of order, the normal disciplinary procedures

% shall be im m ediately reinstated. All inm ates who were detained un-
* der the em ergency provisions shall be tried before a disciplinary hear­

ing board in accordance w ith the rules of this chapter.

Commentary of the penal institution will have to
There may arise riots or other sit- he suspended. These aie the few 

uations when the normal procedures circumstances where large numbers
169

supported by the evidence and 
whether the sentence imposed was 
just. The superintendent and the 
commissioner have the authority to 
reverse convictions not based upon 
the evidence presented and to modify 
the sentence or order new or further 
proceedings in order to assure that 
the inmate receives an equitable 
disposition.



-*VrW. ' ^ . ^ , ^ > ^ ' . . 1 . , : ,  ---- - 1 - ■■■.< v.v . ir,

MODEL RULES AND REGULATIONS

of Inmates are involved in activities 
which pose a serious threat to life 
and property rather than alterca­
tions between small numbers of in­
mates which do not disrupt the in­
stitution as a whole. This section 
provides that the invoking of emer­
gency provisions must be authorized 
by the superintendent for the first 
two days and by the Commissioner 
for any longer period of time. The 
authorization procedure is recom­
mended as a means of insuring that

the emergency provisions are con­
strued narrowly and only invoked 
during times of true emergency.13

These provisions are temporary 
and may be invoked only during a 
state of emergency. As soon as 
normalcy returns, the regular pro­
cedures for discipline are to be 
quickly reinstated and are to be ap­
plied retroactively to all persons de­
tained during the period when the 
emergency provisions were in effect.

*

35 Morris v. Travisono, 310 F.Supp. 
854, 861 (D.R.1.1970).

Rule V - l l  Expungem ent
a. A ny inm ate found not guilty at the hearing or whose convic­

tion is reversed shall have all mention of the charges expunged from  
h is perm anent record immediately.

b. A ny inm ate who receives a penalty at a disciplinary hearing  
involving loss of good time, transfer, change in custody status, or as­
signm ent to segregation or isolation m ay have all reference to and 
record of the violation expunged from his permanent record if he is 
not found guilty of com m itting any rule violation for a period of 360 
days from the date of the hearing except that imposition of sum m ary 
punishm ents shall not affect expungem ent.

c. A ny inm ate who receives any other penalties at a disciplinary 
hearing m ay have his record expunged after a period of ISO days after  
th e  date of the hearing except that imposition of sum m ary punish­
m ent shall not affect expungem ent.

Commentary
This provision gives inmates an 

opportunity to clear their discipli­
nary records if they avoid viola­
tions of the disciplinary rules for ISO 
or 360 days, depending upon the 
severity of the offense committed. 
The provision is designed as an in­

centive to inmates to avoid further 
violations of the code of offenses. 
Inmates found not guilty or whose 
convictions are reversed will have 
all mention of the charges expunged 
immediately in order to assure that 
no negative connotations result from 
the charge having been brought.

170



Appendix C

MODEL RULES AND REGULATIONS

IC. Mail, Visitation, and 
Telephones

General Introduction
Once a person is in prison, his 

opportunities for contact with the 
world outside are, of course, severely 
limited. Three means of access 
which remain are through corre­
spondence, visits and telephone calls. 
In this section, rules are proposed to 
regulate the permissible access by 
mail, visitation, and telephone of in­
mates to the free society.

This has been an area of consider­
able change in recent years. From 
the historical tradition that one in 
prison was banished from all con­
tact with society,1 our society has 
moved to accept the notion that in­
mates retain limited rights of ac­
cess. In recent years, strict censor­
ship of mail has been often chal-

1 See A. Wolfson, Spinoza: A Life of 
Reason, 74 (1932).

44

«  347 U.S. 4S3 (1954).



i n  ~ M i i y M i i i , -v J- ■-‘t,.!^ r> ■;——

PRISONERS’ RIGHTS AND RESPONSIBILITIES

lenged in the federal courts. The 
thrust of these decisions has been 
that whenever possible, uncensored 
mail should be permitted and that 
the only permissible restrictions are 
those which are validly related to 
the security requirements of the in­
stitution.* Many prison censorship 
regulations have been changed to re­
flect these court decisions.3

For the most part, the regulations 
proposed here follow the direction of 
those decisions in attempting to find 
a feasible position which will pre­
serve the constitutional rights of the 
inmates but in no way endanger in­
stitutional security.

Definitions
For the purposes of correspond­

ence regulations, the following ma­
terials shall be considered contra­
band, and may be confiscated under 
the provisions of this section.

A. Objects
1. Currency (paper or coin).
2. Postage stamps.
3. Narcotics, hallucinogenic, or 

other illegal or invalidly possessed 
drugs.

4. Plans for the manufacture of 
weapons, incendiary devices, escape 
routes or the manufacture of drugs 
or alcohol.

5. Alcoholic beverages.

6. Weapons of any variety.
7. Perishable goods.
8. Any items other than reading 

matter which are not included on a 
list of authorized inmate possessions 
used by the Department of Correc­
tion.

B. Publications
1. Materials which describe the 

manufacture of weapons, bombs, in­
cendiary devices, or the brewing of 
alcohol if their possession by an in­
mate would create a danger that 
they would be used to threaten the 
order of security of the institution.

2. Materials which would be con­
sidered obscene under current U. S. 
Supreme Court standards (i. e., 
those containing pictures or descrip­
tions of sexual acts which are utter­
ly without redeeming social impor­
tance).

C. Apportionment of Personnel
The Postal Officer and Visiting

Room Officer are personnel crucial 
to the implementation of the pro­
grams herein proposed. These in­
dividuals should all be appointed by 
the institution superintendents. 
They shall be selected from among 
the ranks of the officers. (The Vis­
iting Room Officer may also double 
as supervisor of the telephone instal­
lation) .

*E. g., Palmigiano v. Travisono, 317 
F.Supp. 776 (D.R.I.1970); Marsh v. 
Moore, 325 F.Supp. 392 (D.Mass.1971); 
Smith v. Robbins, 328 F.Supp. 162 (D. 
Me.1971) aff'd 454 F.2d 696 (1st Cir. 
1972). See Comment, Palmigiano: The 
Constitutionality of Prison Mail Cen­
sorship, 21 Cath.U.L.Rev. 215 (1971). 
Singer, Censorship of Prisoners' Mail 
and the Constitution, 56 A.B.A. J. 1051
(1970).

3 Office of Adult Corrections, Olym­
pia, Washington Mem. No. 71-8, Revi­
sion of Correspondence Regulations of 
Adult Corrections Institutions (1971). 
Pennsylvania Commissioner of Correc­
tions, A. Directive No. 3, Inmate Mail 
Privileges (1972). Minnesota Commis­
sioner of Corrections, Policy Restate­
ment Concerning Adult and Youthful 
Offenders—Inmate Mail Procedures
(1971).

45



M L,

MODEL RULES AND REGULATIONS 

Rule IC-1 Outgoing Letters
a. Inmates may send letters to any person, including inmates 

in other institutions. There shall be no restrictions upon the number 
of letters that may be written, the length of any letter, or the lan­
guage in which a letter may be written.

b. All outgoing letters shall be sealed by the inmate and deposit­
ed in locked mail boxes, which shall be positioned in central, available 
locations within each institution. All such mail shall be collected 
daily (except Sunday) by the postal officer, at a predetermined time, 
and delivered to the U. S. Post Office on the same day. No outgoing 
letters shall be opened by corrections personnel except upon probable 
cause and after a warrant has been obtained from a court of law.

c. • Each letter shall bear the writer’s name and institutional 
address on the upper left-hand corner of the envelope. Although no 
letters will be logged, or names recorded, each inmate should realize 
that he is subject to the same federal laws and regulations governing 
use of the mails as are generally applicable to other persons using the 
U. S. mails. Any complaints from recipients of letters as to threats, 
obscenities, libels or other illegalities shall be referred to postal au­
thorities for appropriate action.

d. The institution will supply inmates whose institutional ac­
counts are not sufficient with stationery and postage for three letters 
each week, which may be addressed to either a foreign or domestic 
address. Stationery and stamps for other letters may be bought at 
the canteen.

Rule IC—2 Incoming Letters
a. There shall be no limit to the number of letters an inmate 

m ay receive. Letters shall not be restricted as to length or language. 
The writer’s name and address shall appear on the envelope of each 
letter.

b. N o incoming letters shall be read, even in the cases where 
they m ay be opened (§ c, below), except upon showing of probable 
cause and obtaining of a warrant from a court of law.

c. Alternative 1:
All letters shall undergo visual and tactile external examination 

for contraband. No letters shall be opened unless there is probable 
cause that a particular letter threatens the order or security of the 
institution. The following circumstances shall constitute probable 
cause:

(1) A  particular letter being too thick to determine whether 
contraband may be present, or containing material that feels 
suspicious.

(2) A  letter bearing no return address.
46



d r. > fc W t.

PRISONERS’ RIGHTS AND RESPONSIBILITIES

(3) Recent discovery of contraband in possession of an inmate, 
which may have been obtained through letters, and which 
is otherwise unexplained.

Alternative 2:
A ll incoming letters shall be opened and inspected for contra­

band, but shall not be read.
d. Correspondence from attorneys, courts, state and federal offi­

cials, and corrections officials shall not be opened except in the pres­
ence of the inmate addressee. Other mail, to include packages, shall 
be opened only in the presence of the inmate postal observer (§ e ).

e. The inmate council shall appoint one inmate each day for 
w hatever period is required to observe the actions of the postal 
officer in opening letters and packages. The inmate postal observer 
shall insure that no letters are read, and shall witness any discovery 
of contraband. He shall sign, as witness, a daily statement by the 
postal officer indicating all item s of alleged contraband found in the 
m ail, or that there is none if such is the case.

f. I f  contraband is discovered under Rule IC-2 the postal officer 
shall, in the presence of the inmate postal observer, remove such con­
traband and send it to the superintendent or his designee. The postal 
officer shall at this time complete a notice form to the inmate, in­
form ing him of this action. A  notice form shall be delivered to the 
inm ate within twenty-four hours, along with any letter that may have 
accompanied the contraband material in the envelope. The notice 
form  shall indicate the name and address of the sender of the letter, 
and the nature of the confiscated contraband. A copy of the notice 
form shall also be filed with the superintendent or his designee. If 
It appeal's that a state or federal law has been violated, the material 
shall be referred to the appropriate authority for criminal prosecu­
tion.
A n inm ate will not be disciplined merely because contraband has 
been received in a letter addressed to him; but if an investigation 
determ ines that such contraband was mailed with his knowledge or 
consent, his name may be referred to state or federal authorities for 
appropriate action.

Rule IC—3 Packages
a. Packages may be received from any person. Inmates should 

be aware of regulations as to illegal possessions, however, and should 
inform their correspondents of such regulations so as to avoid the 
introduction of illegal items into the institution.

b. All packages shall be opened in the presence of the inmate 
postal observer. Those which contain contraband shall be returned to 
the sender, and the inmate shall be notified within twenty-four hours. 
(If the contraband is of such a nature as to violate state or federal

47

f  u w . i w y .  « ■ *  1. *11' IM W IW W  T . ’W IW 'P | ■ ll 1 M  JJ HI'. U K



. 
---

---
---

---
---

 
—

---
---

---
---

---
---

---
---

---
---

---
---

---
---

---
--

----- --------- A . ^  .:.. v .r.irtA ^ ,,,..... . L .u-iii. -----

MODEL RULES AND REGULATIONS

law, it will bo treated the same as contraband in letters under 
Rule IC-2f. All other packages will be delivered to the inmate addres­
see on the day they are received.

Rule IC—4 Publications
a. An inmate may receive books, magazines and newspapers 

from any source, either as gifts or by express order or subscription. 
Any such materials obtained at cost to the inmate must be prepaid.

b. Packages containing published materials shall be treated in 
the same manner as other packages, under Rule IC-3b.

c. Reading materials may be censored in accordance with the 
established regulations defining contraband. Decisions as to the 
classification of such materials will be reached as follows:

(1) Within twenty-four hours the postal officer shall forward 
questionable publications to postal authorities for determina­
tion whether the publication has passed through the mail in 
violation of federal law. If the postal officer believes that 
material may legally have passed through the mails but con­
stitutes an immediate threat to the institution, he shall sub­
mit the material to the superintendent or his designee.

(2) The superintendent or his designee shall read as much of a 
book as may be necessary to make a reasonable determina­
tion whether it is admissible, or in the case of a magazine 
or newspaper, shall read the article in question. If a par­
ticular article is found to be contraband because it creates an 
immediate threat to institutional order, it may be clipped 
from the newspaper or magazine. Similarly, an entire issue 
of a periodical may be declared contraband if it creates an 
immediate threat to institutional order. All acceptable ma­
terial shall be delivered to the inmate within twenty-four 
hours from the time the postal officer receives it (or forty- 
eight hours from its arrival in the institution). The inmate 
shall be notified of materials withheld within the same period 
of time. All materials determined to be contraband shall 
be held for five days. If no order is received from the com­
m issioner’s office by that time, articles from periodicals 
shall be destroyed, and books returned to sender with an 
explanatory note. However, if the inmate expresses an in­
tent to challenge the postal officer's decision in a court of 
law, the item s shall be retained until all proceedings have 
ended. If books were purchased by the inmate, all returned 
funds shall be deposited in the inmate’s institutional ac­
count.

(3) If an inmate wishes to appeal a decision by the superintend­
ent or his designee, he must initiate a grievance procedure

48

f  ■ ...W W W ! I"



aifir **—.->*.

PRISONERS’ RIGHTS AND RESPONSIBILITIES

within forty-eight hours. The questionable material will 
then be ordered by that office from the institution within 
forty-eight hours. The commissioner or his designee will re­
view  the material, and take appropriate action. The inmate 
should receive either the material, or a note indicating an 
adverse decision on appeal, within seven days.

d. N o periodical m ay be summarily rejected as contraband, al­
though any individual issue that is determined to be contraband may 
be withheld from an inmate.

e. If an inm ate’s native language is not English, he may not 
be denied publications merely because they are printed in a foreign 
language.

Commentary— Standards of Regula­
tion

When establishing proper stand­
ards for censorship and control of 
inmates’ correspondence, one must 
work from the principle that an in­
mate “retains all rights of an ordi­
nary citizen except those expressly 
or by necessary implication taken 
from him by law.” 4 Since the pres­
ent issue involves First Amendment 
freedoms, the question posed by any 
regulation in this area is whether 
that regulation can be adequately 
justified by the corrections admin­
istration as a valid restriction upon 
an inmate’s First Amendment 
rights.

For more than thirty years, the 
Supreme Court’s standard for regu­
lation of speech was “whether the 
words are used in such circumstanc­
es and are of such a nature as to 
create a clear and present danger 
that they will bring about the sub­
stantive evils that Congress has a 
right to prevent.” 3 More recently, 
in Dennis v. United States,6 the Su­
preme Court amended the “clear and 
present danger” standard to adopt

an “interest balancing” standard. 
Judge Learned Hand, in his lower 
court opinion, set forth the require­
ment that “in each case (courts) 
must ask whether the gravity of the 
‘evil,’ discounted by its improbabili­
ty, justifies such invasion of free 
speech as is necessary to avoid the 
danger.”* The Supreme Court af­
firmed this decision and Justice 
Frankfurter, in his concurring opin­
ion, criticized the old standard as 
“inflexible,” suggesting that “the 
demands of free speech in a demo­
cratic society as well as the interest 
in national security are better served 
by a candid and informed weighing 
of the competing interests, within 
the confines of the judicial proc­
ess.” *

The Dennis standard was recent­
ly applied to a prison case by the 
Fifth Circuit Court of Appeals 
which declared: “The State must 
show some substantial controlling 
interest which requires the subordi­
nation or limitation of these impor­
tant rights, and which justifies their 
infringement . . . and in the
absence of such compelling justifi-

4 Coffin v. Reichard, 143 F.2d 443 
(6th Cir. 1949) cert. den. 325 U.S. 887.

5 Schenck v. U. S„ 249 U.S. 47 (1919).

6 341 U.S. 494 (1950).

7 183 F.2d at 212 (2nd Cir. 1949). 

*341 U.S. at 524-525.
49



iii
III

MODEL RULES AND REGULATIONS

cation the State restrictions are im­
permissible infringements of these 
fundamental and preferred rights.” 9

In a recent case, the Federal Dis­
trict Court in Rhode Island stated 
that “total censorship serves no ra­
tional deterrent, rehabilitative or 
prison security purposes.” 10 This 
case led to a major revision of the 
mail censorship regulations in that 
state. Other states have recently 
given some attention to this impor­
tant decision, and have limited the 
amount of permissible restrictions.11

1. Outgoing Letters
In recent months, the Department 

of Correction has permitted all out­
going mail to leave the inmate’s pos­
session sealed and uncensored. This 
satisfies one of the major proposals 
with respect to outgoing mail. But 
there is no provision within the same 
memorandum for the amount of mail 
which may be sent, nor is there any 
change in the restrictions regarding 
persons who may receive mail, the 
length of letters, or the requirement 
that letters be written in English. 
It is with these issues that the pro­
posed regulations expand upon the 
current regulations of the Depart­
ment of Correction.

The permissible restrictions upon 
mail are dictated by emerging inter­
pretation of the First Amendment in 
the prison context. The administra­
tion cannot regulate mail merely to 
protect its interest from a danger 
that “might” arise in the future— 
they must show that such a danger

is clear and present, that it is great 
enough to warrant an invasion of 
First Amendment rights and fur­
thermore, that there is no alterna­
tive method of dealing with the dan­
ger other than suen an invasion of 
the inmate’s rights.12 Accordingly, 
regulations restricting numbers of 
letters, or prohibiting letters by male 
inmates to unrelated married fe­
males, or to ex-offenders, or prohibit­
ing letters in foreign languages all 
lack validity.13 None of these regula­
tions deals with a clear and present 
danger of any sort.14 While one can 
visualize the possibility that a letter 
would be obscene or threatening or 
could contain escape plans, the mere 
possibility of such letters is not such 
as to warrant the restriction. More­
over, since an alternative remedy ex­
ists through the postal regulations 
and state law, the justification for 
the restriction fails.

In addition, the proposed rule re­
quires that the sender's name and 
institutional address appear on the 
envelope (IC-lc). This in itself pro­
vides some insurance against the 
evils that other restrictions would 
regulate—for any improper letters 
would be subject to complaint by the 
addressee, and would result in disci­
plinary or legal action against the 
inmate. (IC-ld).

Similarly, restrictions on length or 
language are meaningless. If an in­
mate were writing an escape plan to 
a friend, a danger to the institution 
would not exist unless security was 
so lacking in other areas that es-

•Jacfeson v. Godwin, 400 F.2d 529, 
541 (5th Cir. 1968).

10 Palmigiano v. Travisono, 317 F. 
Supp. 776, 785 (D.R.I.1970).

11 See e. g., Mass. Commissioner’s 
Memorandum of Jan. 12, 1972, and the 
regulations cited in fn. 3.

12 Palmigiano v. Travisono, 317 F. 
Supp. 776 (D.R.I.1970).

13 Fox, The First Amendment Rights 
of Prisoners, 63 J.Crim.L.C. & P.S. 162, 
174 (1972).

14 Morales v. Schmidt, 340 F.Supp. 
544 (E.D.Wis.1972).

50

At —

I

I.

I

)

)
i

)
ii
i■
I
i*
i

i

!I
I

■ i W9T*



rtinlfcahlVw 11' ijjc&i!

PRISONERS’ RIGHTS AND RESPONSIBILITIES

cape could be easily accomplished. 
If such were the case, a mere regu­
lation on letter writing would prob­
ably be of little value for security 
purposes. Eliminating mail inspec­
tion would hardly leave the state 
powerless to prevent escapes. At­
tempted escape from prison is a 
criminal offense and anyone con­
spiring by mail to assist in an at­
tempt could also be prosecuted.15 
Furthermore, the security interest 
cannot outweigh the inmate’s First 
Amendment rights. As a United 
States District Judge recently wrote, 
“I am not persuaded that the gov­
ernment’s interest in diminishing 
the likelihood of such future unlaw­
ful activity by one committed of 
past crime is so compelling as to per­
mit the vindication of this interest 
by interference with the correspond­
ence of the plaintiff.” 16

Finally, restrictions on letters in 
foreign languages have little value 
and are an invasion of freedom of 
speech to non-English speaking in­
mates.

The requirement that the institu­
tion furnish postage for indigent in­
mates is consistent with current cor­
rectional policy and with recent 
court decisions.11 Since letter writ­
ing is to be encouraged for rehabili­
tative reasons, the institution must 
insure that all inmates have access 
to writing materials and postage.

Since all outgoing mail will be sent 
unopened, no mention has been made 
of special treatment for letters to at­

torneys, State and Federal officials, 
etc. All letters will now be brought 
up to the standards that formerly 
applied only to such “special” let­
ters. By the same token, letters to 
the press will be guaranteed, though 
their return to the institution may 
be censored under provisions of § 
HE—4c if defined as contraband.18

2. Incoming Letters
Rule IC-la and b create the same 

general provisions for incoming let­
ters that IC-la creates for out­
going letters. For the same reasons 
stated above, these are most reason­
able, and the Department of Cor­
rection has already taken significant 
steps in establishing such a system.

Section IC-2c is stated in the alter­
native, primarily because the major 
considerations in this area are ad­
ministrative in nature, and should 
therefore be considered with an eye 
for efficiency and simplicity of func­
tion, while still maintaining both 
proper security and proper regard 
for inmate’s rights. The first al­
ternative provides the inmate with a 
greater feeling that his rights have 
been preserved, in that he receives 
his mail intact from the sender in 
a sealed envelope. Exceptions to 
this would occur only where the 
Postal Officer has probable cause to 
open the envelope. It is assumed 
that most of these instances would 
be where an envelope is too thick to 
permit an effective tactile search 
(IC—1) or where there is no return

«
,s Note, Prison Mail Censorship and 

the First Amendment, 81 Yale L.J. 
(1971). See Hollen, Emerging Prisoners' 
Rights, 33 Ohio St.L.J. 1, 17 (1972). 
Forys, Constitutional Rights of Prison­
ers, 55 Mil.L.Rev. 1. 37 (1972).

w Morales v. Schmidt, 340 F.Supp. 
544, 555 (E.D.Wis.1972.)

11 Jones v. Wittenberg, 330 F.Supp. 
707, 719 (N.D.Ohio 1971) aff'd sub nom. 
Jones v. Metzger, 456 F.2d 854 (6th 
Cir. 1972) (Institution must furnish 
postage for 5 letters per week).

18 Nolan v. Fitzpatrick, '326 F.Supp. 
209 (D.Mass.1971) aff’d 451 F.2d 545 
(1st Cir. 1971).



V*.̂ •- a , — »■{,.,! -~“- 11 •»• ■ -Sinn

MODEL RULES AND REGULATIONS

address (IC-2c(2). Nevertheless, an 
inmate would be much more willing 
to submit to such an inspection in 
the interest of security if such an 
inspection were limited to instances 
where there was valid reason for it. 
These standards of probable cause 
allow for the possibility that the 
sender is unknown (no return 
address), the receiver is suspect 
(discovery of contraband in his pos­
session without another known 
source), or the letter itself is 
suspect. Such standards provide an 
adequate measure of security, yet al­
low the normal current of relatively 
short, personal letters to pass undis­
turbed.19

The primary problem with the 
first alternative is the administra­
tive burden that would be placed on 
the Postal Officer. It is presently 
impossible to determine how many 
letters are overly thick, or are 
readily determined to be suspect. A 
great many would probably be 
borderline cases, facing the officer 
with the question of whether or not 
to open them. The necessity of 
making such a decision recommends 
the second alternative, which would 
probably not be as satisfactory to 
the inmates, but could be amended to 
further their protection. This in­
volves the current procedure, under 
the most recent Commissioner’s 
memorandum, by which ail incoming 
mail is opened and checked for con­
traband before delivery to the in­
mate, but no mail is read by cor­
rections personnel. To insure the

same right that would have been 
present under the first alternative, 
we have proposed IC-2d and IC- 
2e which require inmate observa­
tion of any corrections personnel 
opening inmates’ mail. Rule IC- 
2d provides, in accordance with Smith  
v. Robbins,20 that correspondence 
from attorneys be opened only in the 
inmate’s presence. This same safe­
guard would be extended to letters 
from courts and public officials as 
well, for these have always been 
classified as a special group under 
past regulations.-1 Essentially, this 
would provide the same type of pro­
tection for this class of incoming 
mail as Marsh v. Moore22 would 
guarantee to outgoing mail. Cor­
respondence of this type is more in­
timately concerned with an inmate’s 
status in prison than all others. It 
involves his constitutional rights 
more directly and therefore should 
be afforded the highest degree of 
protection. Rule IC-2e provides a 
parallel situation to IC-2d in that 
it requires some inmate observation 
of all opening of mail although not 
necessarily by the inmate addressee 
himself. This provision constitutes 
a major departure from current 
regulations, and is most important 
especially if the second alternative is 
adopted. The importance of an In­
mate Postal Observer cannot be 
overemphasized. His presence would 
insure good faith on the part of 
the administration. Ideally, the In­
mate Council should establish a ro­
tating board of inmate observers,

19 Jones v. Wittenberg, 330 F.Supp 
707, 719 (N.D.Ohio 1971) af fd sub nom. 
Jones v. Metzger, 456 F.2d 854 (6th Cir. 
1972).

19 454 F.2d 696 (1st Cir. 1972).

11 Tyree v. Fitzpatrick, 325 F.Supp. 
554 (D.Mass.1971) aff’d 445 F.2d 627 (1st

Cir. 1971). See Hollen, Emerging 
Prisoners' Rights, 33 Ohio St.L.J. 1, 73 
(1972).

** 325 F.Supp. 392 (D.Mass.1971). See 
Fox, The First Amendment Rights of 
Prisoners, 63 J.Crim.L.C. & P.S. 162, 175 
(1972).

52

■ *WI ' »rnHW.W.■,»»!»»II|HHH)I



PRISONERS’ RIGHTS AND RESPONSIBILITIES

to be changed on a regular basis. 
This would prevent a routine job 
from falling upon the same person 
too often, and at the same time 
would prevent any possible corrup­
tion that could occur if one inmate 
were to hold the same job for a long 
period.

Rule IC-2f deals with the proced­
ures to be implemented in cases 
where contraband is found. It close­
ly follows the format suggested in 
the latest draft of Mail and Publi­
cations issued by the Massachusetts 
Department of Corrections. In 
these proposals, however, we dis­
tinguish between letters and publi­
cations as far as remedies. When a 
letter is opened, the only items that 
may be removed are illegal anyway; 
thus, there can be no successful ap­
peal by an inmate for restoration of 
such articles. Otherwise, the pro­
cedures are similar. The Commis­
sioner’s notice forms are satisfac­
tory, but might be improved by the 
addition of specific lists of contra­
band items with check-off boxes. 
This would contribute to a consistent 
application of the standards and elim­
inate some discretion on the part of 
the Postal Officer. This section 
stresses the principle that is urged 
throughout these proposals—that 
there are adequate laws in existence 
to cover any contraband that could 
arrive in a letter. The institution 
may take refuge in those laws where 
necessary, without creating further 
regulation of its own. If contraband 
arrives in a letter addressed to an in­
mate, the inmate would be no more 
responsible than an average citizen 
who receives illegal goods through 
the mail by mistake. The factor of 
consent, or intent, must be shown to 
make him liable.

3. Packages
The definitions of Contraband 

(see definition section supra) pro­

vide some restrictions on admissible 
packages. But, as noted earlier, 
such restrictions should be as ex­
plicit as possible, and would be best 
served by the publication of a list 
from the Commissioner’s Office of 
items that may be possessed by in­
mates. Inmates would be encour­
aged to distribute this list to their 
friends and relatives, in order to 
advise them of items which may and 
may not be sent to the institution.

Clearly all packages must be 
opened for security reasons. Since 
all packages are inspected, there is 
no valid reason for restricting in­
mates to a short list of persons who 
may send packages. The only plausi­
ble objection to an unlimited number 
of packages is that some inmates 
might use the new regulation to try 
to over-burden the system. In such 
cases, an inmate might be instructed 
to send copies of contraband lists to 
his friends, and warned that if 
packages containing contraband con­
tinue to arrive from such persons, 
his consent would be presumed, and 
he would be disciplined. In any case, 
the likelihood of such incidents is 
small, and they are much better 
treated individually, rather than 
creating regulations which unneces­
sarily restrict the whole inmate 
population.

4. Publications
For many years there has been a 

restriction in most institutions that 
all reading materials be ordered by 
inmates directly from the publisher. 
Again, the problem involved is over­
regulation, the existence of over­
broad restrictions to enforce an im­
portant area of security. The only 
possible evil in receiving books from 
home, or from friends, is that some 
contraband might be smuggled in 
with the books; and if all books are 
examined for such contraband, this 

53



MHfet ------ | ,

MODEL RULES AND REGULATIONS

problem is already avoided.23 There­
fore, an inmate should be able to re­
ceive books from anyone, as long as 
he pays for those that are not gifts. 
(IC-4a and b).

Determining which publications 
are admissible is a difficult task for 
prison administrators. Courts and 
police departments seem to be un­
sure of what publications are per­
missible in society outside of 
prisons, so there is no reason to be­
lieve that prison officials are more 
certain of the permissible standard 
within institutions. It is hoped that 
the institutions would admit any 
materials that may pass through the 
mails, and that the postal standards 
would be adequate; however, postal 
standards are no more explicit than 
prohibiting “lewd, lascivious, or 
filthy publications’’ or "any mail 
containing any filthy, vile, or inde­
cent thing.” 24 This terminology is, 
of course, rather vague. Neverthe­
less, the correctional system ought to 
depend upon the postal authorities 
for determinations of which material 
may be said to be “utterly without 
social importance” since that stand­
ard can be a difficult one to inter­
pret.25 From past decisions it 
would appear that examples of 
material which would be excluded 
include publications which graphical­
ly portray sexual intercourse or such 
deviations as sadomasochism or

fetishism.26 As a general rule, 
novels or other written work are not 
obscene.21 Whenever the institu­
tions have doubt of the admissibility 
of any item, the postal authorities 
should be consulted.

Besides the obscenity issue, there 
is also the problem of determining 
which publications present a danger 
to security. The Supreme Court re­
cently distinguished between mere 
advocacy of violence and direct pro­
motion or incitement to violence, the 
former being protected by the First 
Amendment, the latter being il­
legal.28 A similar standard has 
been applied to the introduction of 
publications into prisons, where a 
federal court has held that in order 
to exclude a publication, there must 
be a “compelling state interest 
centering on prison security, a clear 
and present danger of a breach of 
prison discipline or substantial inter­
ference with the orderly administra­
tion of the institution.” 29 Examples 
of literature which could be banned 
include materials giving directions 
on sniffing glue or directions for 
escaping from prisons.30 The Fed­
eral postal regulations prohibit 
“matter of a character tending to in­
cite arson, murder, or assassina­
tion.” 31 The definitions are an 
attempt at the promulgation of ex­
plicit rules which can minimize the 
number of publications that would be

13 Seale v. Manson, 326 F.Supp. 1375 
(D.Conn.1971).

24 39 C.F.R. 5 123.7(a) (Revised Jan. 
1, 1971).

25 Compare Roth v. U. S., 354 U.S. 
471 (1957) with Jacobellis v. Ohio, 378 
U.S. 184 (1964).

26 Mishkin v. New York, 383 U.S. 502 
(1966).

21 Memoirs v. Massachusetts, 383 U.S. 
413 (1966).

28 Brandenburg v. Ohio, 395 U.S. 444 
(1969).

29 Fortune Society v. McGinnis, 319 
F.Supp. 901, 904 (S.D.N.Y.1970).

30 Sostre v. Otis, 330 F.Supp. 941 (S.D. 
N.Y.1971); cf. Seale v. Manson, 326 F. 
Supp. 1375 (D.Conn.1970).

3439 C.F.R. 5 123.7(c)'(Revised Jan. 
1, 1971). See Fox, The First Amend­
ment Rights of Prisoners, 63 J.Crim.L.C. 
& P.S. 162, 177 (1972).



PRISONERS’ RIGHTS AND RESPONSIBILITIES

questionable under these standards. 
It should be noted that Rule IC-4d 
and e insure that publications will not 
be excluded for other reasons, as­
suming they meet the standards for

obscenity and security. This will al­
low the receipt of books in foreign 
languages, religious books, law 
books, etc.

ICrantz-Mod.Ru'es & Reg Prisoners' Rigntv—5 55



A p p e n d ix  D

STANDARD 2.17 

ACCESS TO THE PUBLIC

Each correctional agency should immediately develop and implement policies and procedures 
to fulfill the right of offenders to communicate with the public. Correctional regulations limiting 
smelt communication should be consistent with Standard 2.15. Questions of rights of access to the 
public arise primarily in the context of regulations affecting mail, personal visitation, and'the 
communications media.

Mail. Offenders should have the right to communicate or correspond with persons or 
organizations and to send and receive letters, packages, bocks, periodicals, and any other material 
that can be lawfully mailed. The following additional guidelines should apply:

1. Correctional authorities should not limit the volume of mail to or from a person under 
supervision.

i
2. Correctional authorities should have the right to inspect incoming and outgoing mail, but 

neither incoming nor outgoing mail should be read or censored. Cash, checks, or money 
orders should be removed from incoming m.ui and credited to offenders’ accounts. If 
contraband is discovered in either incoming or outgoing mail, it may be removed. Only 
illegal items and items which threaten the secuirty of the institution should he considered 
contraband.

3. Offenders should receive a reasonable postage allowance to maintain community ties.

Visitation. Offenders should have the right to communicate in person with individuals of their 
own choosing. The following additional guidelines should apply:

1. Correctional authorities should not limit the number of visitors an offender may receive 
or the length of such visits except in accordance with regular institutional schedules and 
requirements.

2. Correctional authorities should facilitate and promote visitation of offenders by the 
following acts:

a. Providing transportation for visitors from terminal points of public transportation. In 
some instances, the correctional agency may wish to pay the entire transportation 
costs of family members where the offender and the fxniiy arc indigent.

b. Providing appropriate rooms for visitation that allow .ease and informality of 
communication in a natural environment as free from institutional or custodial 
attributes as possible.

c. Making provisions for family visits in private surroundings conducive to maintuinina 
and strengthening family ties.

3. The correctional agency may supervise the visiting area in an unobtrusive manner but 
should not eavesdrop on conversations or otherwise interfere with the participants’ 
privacy.



For Xores

Med:s Except tn emergencies sucli ns institutional disorders, offender', should be a"oveJ to 
present rherr views to the public through the commutations media. Corrections! “u5torit=‘s 

d en.o-.afee and facilitate the flow of inhumation between the media and offenders bv 
autnorizirg otter.ders, among other things, to: u n j'-r> s>

• i- Grant confidential and uncensored interviews to representatives of the media. Such 
interviews shouid be scheduled not to disrupt regular institutional schedules' undul' 
unless curing a newsworthy event. 1

2. Send uncensored letters and other communications to the media.

Publish articles or books on any subject.

4. Display and sell original creative works.

' As USid in this standard, the term "media" encompasses any printed or electronic means of 
..convev ina information to the public including but not limited to newspapers, magazines books or 
Other pubu.a.ions regardless ot the size or nature of their circulation and licensed radio and 
twxis.oi, broadcasters. Representatives of the media should be allowed access to a!! correctional 

'  Icr r-?or£ino itemii to public interest consistent with the preservation of offenders'P* <2CV .
* ‘ »\

broadc^tn4' :S Sh°U!d &S Sr5tit!' d to rcceiv° Ia’vful publication, or radio and television 

Commentary

t. ’• 3tv!,'R? !s institutions have served not merely to restrain criminal offenders but
,1rh;{ hav?,!'8sT ,solated from !he public in general and from their families and

'C r v v V t  T°-'S r‘°- kn° 'V wn3t !S k=P?«*g ‘n ?‘j«ns. and in large part the no., know what :s going on outside the prisons. While many restrictions on 
comnia.nicat-.on vvere imposed under theories of institutional security, they have resulted in 

pr°sra;ns more dlfncult- If corrections is, to assure that'an offender vilL' 
■t\K r.T  t  l‘:” ‘rei .S0":h; Up0n tSiiz%i’ the adjustment process must begin long before the d-v of
w  'V J °  ^ C0‘r,p“aa tn!s! tn2 ?ub!iC mU5t fae concerned about what hausens in corrections 
Ir.fo.niution is a prerequisite to concern. Likewise, the offender must retain his t-s 'to  th»

. S S S m p o n  « S ' ! ,efl3e ° ' WlWt ^  ^  C°mmUnity 13 likC if he « to be able to live the*

-  R ation  of correctional institutions also contains additional dancers. indue Geseil 
commenced in U-jz.ungton Post Co. v. Kieindienst, 11 Crim. L. Reptr. 2045 (DI).C. 1972):

ac ” carcenw1d- 'Vhether il bj Ja 1 P*°».«  insane «y!«n. or an institution su-h
xi Tl'v. ' 1  Wr i,'’.3nf r:‘,Jrdf  ’ °PP°«Mi»ity for human indignities and administrative insensitivity 

^  S Cf “ecJom lW* out of th- Public's view. It is largely only through the media
,'V 3 tl"; "* «  - .r ins mutton to adhere to minimum standards of human d.enitv can be exposed
! d.' rc:°rins in t.tesc areas have often been sparked by press attention. Converses- secr-cv is

" official conduct of public institutions for it creates suspicion rumor
it not distrust. Oisintcroit causes; nbiiscs to multiply. '

di , . J h" ,.,U"  n t f C‘,nicxti in V-l!ld’ thc isolation of the offender from the public can be
m or? h  ,na“' V!Slt:? K’n’ T  SCCC“  t0 mcJia' in these three areas are the ruhts of
a" otk.uLr to express himself and associate with others. Tints the ttenera! rules justnv.n- 
correcttona. regulations mtertermg with mail, visitation, an 1 access to media should be the same a’s

For A'otes



For Soli’s

f

• *

For Soles
those regulating speech in general. The test of a dear and convincing evidence of u compelling state 
interest proposed in Standard 2.15 should be applicable to these regulations. Standard 2.1/ 
addresses specific aspects o? mail, visitation, and media access.

In discussing the rights of offenders to have access to the public, the rights of the public to 
know what occurs within correctional programs also should be considered.

• J M  In censoring and regulating mail, correctional authorities have not limited themselves to 
keeoin? out harmful or potentially dangerous cojects or substances. The censorship of mail all too 
often has been utilized to exclude ideas deemed by the censor to be tnreatemr.g orharmful to 
offender or critical of the correctional agency. These efforts result in the diversion ol manpower 
from other tasks and, to avoid excessive manpower drams, limitations on the volume o. corres­
pondence permitted. Censorship and limitations on correspondence directly generate inmate 
hostilities and serve to make correctional progress more diiiicult.

Courts be-n  to look critically at this process when it came to their attention that correctional 
authorities we're limiting access to courts. Instances of failure to mail complaints, invasion of 
Privit-ed attorney-client communications, and reprisals against inmates for attempting to send out 
information about deficient conditions were documented. Limitations on access to rehgioV.s 
material also were discovered and criticized.

Contraband must be excluded from correctional institutions to preserve their securityand 
rood drier by iimitins the development of inmate power groups that otter, results »rom 
'.'quhioon of contraband. The standard authorizes the correctional administrator to inspect 
incoming and outgoing mail for contraband but not to read or censor the contents.

Correctional authorities have a duty to insure that offenders are able to .correspond with 
members of the public. A reasonable postage allowance should be provided each oftender as part 
of an affirmative program to help him retain community ties.

Visitation. Whether a person is confined across town in a juti or across the State in a prison, 
confinement totally disrupts his relationship with his community. The longer confinement persists, 
the more alienated the individual becomes. Strained ties with family and friends increase the 
difficulty of making the eventual transition back to the community.

The critical value for offenders of a program of vim mg with relatives and triends long has 
' been recottnizeJ. Nevertheless, a substantia! number of jails have no visiting taclliV.es. In many 

institutions the facilities are demeaning and degrading, as well as violative o: privacy. This defeats 
the purpose of visiting. Screening or glass partitions between the <»!fender and his visitor emphasize 
their separation rather than the retaining comm >n bonds and interests.

Correctional authorities should not merely tolerate visiting hut should encourage it. This 
extends to providing or pitying for transportation when the cost of traveling to the facility would 
be a limiting factor' Such a provision is plain!;, needed to equalize the situation of rich and poor 
inmates. Expenses of this type can be minimized by incarcerating ol tenders in their cwr. 
community or through expanded, use ot furlough programs.

Other steps to eneouraee visits are required. Family visits will overcome difficult and 
•expensive babysitting problems. Seven-day visiting would permit visitors to come on days when



Fur Suit's
For S u it’s diev are not employed. Arb-.trary time limits on the Juration of visits discriminate ae-unst those 

svho cannot nuke frequent visits. Expansion of visiting hours and ucilities m uistitunor.s with 
consistently crowded visiting facilities would alleviate proolem.s caused oy mai.aqu.ite sp-.e.

Visitiv should not be barred under any but the most exceptional circumstances. Where the 
administrator can meet the test recommended in Standard 2.1c ot clear and convincing eudsne,. 
of a compelling state interest, visiting can be regulated and m unusual circumstances prombue .

Hie standard recommends provisions for family visits in surroundings conducive to the 
nvmterunce and strengthening of family ties. The setting should provide privacy and a 
noiainstUutional atmosphere. In institutions where such facilities are net avadable, furlougn 

-■should he -anted custodial qualified offenders in order to maintain .anuly relationships. It is 
recognized'that the so-called conjugal visit is controversial, partly oecau*e tne concept ^em. to 
■foctis "entirely on sexual activity and raises the specter of providing sexual Partners for unmarr.ed
inmates.

• The furlough svstem is far superior to the institutional arrangement. It is not only less 
expensive and less controversial but is more effective for the oi tender and ms fami.y. Ho a .ser th-. 
^commendations of this report contemplate that, as institutional cor.uncn.ent cea,-s to be a 
ct r . o n  criminal sanction, prisons will increasingly house more dangerous offenders tor whom 
furloU  procrams will not be appropriate. Provision of settings where an entire tamny can visit in 
private surroundings would add much to an offender’s receptivity to correctional programs and 
will strengthen his family relationships.

. - Me na While mail and visitation allow offender contact with specific individuals. access to the 
cotfimunicacions media provides contact with the public generally. The pub.ie n s a r i ^ t o
-ififormed of their aovernment’s activities through customary mass comnu..«...... ;.s J..,nd..s
•have i  tight to have their s t o r y  told as well as to be informed c. events m the free souc.y.

Several scent court decisions have recognized both the public's right to kv .w  and the 
O ^ v w ’s relit to tell. 1 n Washington Pcs.r Co. v. Kkindisnst, 1 1 Cren. L. Rptr. -O-o fD.D.C. 
1972) the court struck dov/n the Federal Bureau of Prison's total bait against press 
confined inmates. Tne court ordered that “the thrust of new press regulations shout, be to p.rm.it 
uncensored confidential interviews wherever possible and to withoid permission to interview on an 

■ E S * ;,!  basis only where demonstrable administrative or disciplinary considerations dominate. 
In' D’tr~h-sm v. Or.ald, 332 F. Supp 1128 (W.D.N.Y. 1972) the court required tne correctional 
authorities to show a clear and present danger to prison order, security, or o^cip.me or prior aous. 
of an interview right by the inmate before press interviews could be proiucited.

inmate interviews should be permitted when cither party requests the interview, assuming 
media representatives show reasonable regard for the timing, duration, anu location .or interview*. 
Confidentiality should be respected.

When press contacts are not initiated by the inmate, his desires must be considered. The 
correctional authority should not release information about tnd.viduals without their permission 
except in connection with a legitimate news story. In this instance only matters o. puolic rc.o.d
should be divulged.

Incoming information from the press and other media should not be controlled. Tne laws 
governing piliUinq, mailing, and electronic communications oftcr the neeued protections io tne 
correctional authority. In addition to meeting constitutional requirements, ot.eiu.crs a^.ss u



For Sales

newspapers, m arines, periodicals, and other printed material is important in maintaining ties 
with the community.

References

1 American Correctional Association. Manual o f Correctional Standards. 3d ed. 
Washington: ACA. 1966.

2. Burnham r. Oswald, 333 F. Supp. 112S (W.D. N.Y. 1972).

3. Comment, Prisoner Mail Censorship and The First Amendment, SI h ale L. J. S7 (19/!). i

4. Fortune Society v. McGinnis, 319 F. Supp. 901 (S.D.N.Y. 1970) (Upholding right of 
inmate to receive newsletter published by society of tormer inmates.)

5. Glaser, Daniel. Trie Effectiveness n f  a Prison and Parole System. Indianapolis: Bobbs - 
Merrill, 1964.

6. Jackson v. Godwin. 400 F. 2J 529 (5tit Cir. 1968).

7. Xohm v. Fitzpatrick. 451 F. 2d 545 (1st Cir.' 1971) (Inmate right to correspond with 
news media upheld).

8. Pedmiaaio n. Traiisono, 317 F.Supp. 776 (D.R.l. 19/Q).

9. Rowan. Joseph R. Public Relations and Citizen Action in the Delinquency and Crime 
Field-O ur Greatest Meed. Undated monograph.

It). Sinecr, Censorship o f  Prisoners' Mcil and the Constitution, 56 A3AJ 1051 119/0).

: i j. South Carolina Department of Corrections. Emerging Rights o f  Offenders. Columbia, 
1972. Ch.7.

12. Washington Post Co. v. Kleindienst, 11 Crint. L. Rptr. 2045 ( D.D.C. 1^?_).

13. Stol'cry. “Families Come to the Institution.: A  Five-day Experience in Rehabilitation, 
Federal Probation. 36 (1979), p. 346.

Related Standards

(6.3 Cede ui Gltenders Rights

8.4 Juvenile Facility Planning Concepts 

9.10 Local Facility Evaluation and Planning

11.1 Planning New Correctional Institutions

11.2 Modification of Existing Institutions

1 1 . 4  C r e a t i n e  a n d  S u p p o r t i n g  a  T r e a t m e n t  E n v i r o n m e n t



V-v-
t l

For Notes
STANDARD 2.15

FREE EXFRESSION'AXD .ASSOCIATION

For Notes

Each correctional agency should immediately develop policies and procedures to assure that 
individual offenders are able to exercise their constitutional right of free expression and 
association to the same extent and subject to the same limitations as tire publia-at-large. 
Regulations limiting an offender's right of expression and as'-cciation should be justified by a 
compelling state interest requiring such limitation. '.Vhere such justification exists, the agency 
should adopt regulations which effectuate the state interest with as little interference with an 
offender's rights as possible.

Rights of expression and association are involved in the following contexts:

3. Exercise of free speed’.

2. Exercise of religious beliefs and practices.

3.

4.

5.

6.

7.

8.

Justification for limiting an offenders right of expiession or association would include 
regulations necessary to maintain order, or to protect other offenders, correctional stall, or other 
persons from violence, or the clear threat rtf vicler.ce. The existence of a justification for limiting 
an offender's rights should be determined in light of all the circumstances including the nature of 
the correctional program cr institution to which he is assigned.

Ordinarily, the following factors would not constitute sufficient justification for. art 
interference with an offender’s rights unless present in a situation which constituted a clear threat 
to persona! or institutional security.

1. Protection of the correctional agency or its staff from criticism, whether or not justified;

2. Piotection of other offenders from unpopular ideas.

3. Protection of offenders from views correctional officials deent not conducive to 
rehabilitation or other correctional treatment.

4. Administrative inconvenience.

Sending or receipt of mail. (See Standard 2.17).

Visitations. (See Standard 2.17).

Access to the public through the media. (See Standard 2.17). ;

Engaging in peaceful assemblies.
t*-.

Beloncinc to and participatin'.: in organizations.

Preserving identity through distinguishing clothing, hairstyles, and other characteristics j 
related to physical appearance.



For \ ’orcs i For Wales
5. Administrative cost except where unreasonable and disproportionate to that expended on 

other offenders for similar purposes.
W

Correctional authorities should encourage and facilitate the exercise of the right of expression 
and association by providing "appropriate opportunities and facilities. •'

Commentary

Offenders’ first amendment right of free expression and association has been one of the last tb- 
receive judicial review in the shift from ihe “hands-off” doctrine. A number of older court 
decisions have upheld severe limitations on oral and written speech, particularly in the prison 
context, without consideration of the existence of any significant free-spceeh rights. Nevertheless, 
an impressive and continually increasing number of recent decisions have made it dear that the. 
legal status of the offender (and the pretrial detainee) must incorporate the fust amendment right 
to free expression that may not be limited without a credible showing cf significant danger to 
institutional order, security, or other major societal interests. These decisions have been applied fo 
offenders under parole or probation supervision and those in prisons and other institutions. , . ..

This standard recommends the applicability of the first amendment to all offenders and" 
detainees. For offenders the exercise of the right and any imposed limitations should be on the ■ 
same basis applicable to tire general population. Recent decisions have invalidated, parole 
conditions prohibiting expression of opinion criticizing Federal laws or limited participation in 
peaceful political demonstrations.

In general, the first amendment as applied to ordinary' citizens’ protects against two different . 
forms of governmental regulation: (1) prior restraints, which includes pre-speech censorship; and 
(2) punishments after the fact for speech or speech-related activities. In the correctional setting, . 
prior restraints would include regulations prohibiting speech entirely on various suojects or 
censoring mail or ether written matter. Disciplinary action for speech or speech-related activities 
also is common. . ■

The justifications asserted for prior restraints include protection of the public safety*Or'• 
national security. In some instances, censorship of material deemed obscene has been authorized. 
Ail jurisdictions likewise have statutory crimes involving speech-related activities -- many of which' 
are of the type not protected by the first amendment. Acts providing criminal penalties for- ' 
inciting riots or distributing obscene material are typical examples. In addition, in limited 
instances, persons injured by the spoken or written word may recover damages from the instigator •' 
through common 'law libel and slander doctrines. These principles encouraging or limiting The 
expression of ideas should be applicable to criminal offenders as well ?s to the general public.

Rights of expression and association are involved in a number of differing contexts. This 
standard proposes general rules protecting such rights in any context. More specific standards 
dealing with specific problems involved in specific contexts follow. However, it is important to 
view the rights cf expression and association as general rights. For example, in some cases 
offenders have been prohibited from wearing medallions. Some courts have focused on whether 
the medallion had religious connotation sufficient to raise a first amendment right. Even if tiie 
medallion is not of religious significance however, it may still be protected as a right of.genera! 
expression unreicted to religious freedom. An offender has the right to belong to a political 
organization as well as a religious organization, and the same rules should govern cerr-.eticnal 
interference with that right. While mail and visitation proccdutcs often arc singled out forpj-ocific



For Notes

rc c  s p c e c : ; .governed by general standards protecting f

The standard recommends two genera! rules that should cavern the re-ml ,i„n r 
• and association of offenders v 'r tV r  nr n n , ,h „ , , ' rcbi.Ltiyn of expression

I t o .  dm, mm  b o  a  = o m i = : ‘ „  . ' 1 ; ; . , “  ' " r ” ™  »  * *  " * * « " > .  T ! »  dm  is

— -  -  : ^ r  ™11

C orrocom , au.homlos >v,aii S; jtraifisd in limiting spood, o„d J r ° * '

^ d ? : ±  ^
level. Traditionailv, agencies h^v  ^ Jied a Hat *rlT'- ' ‘ ^ ^ ’T CL" r7 J°  2n un2CC2Ptah!e 
standard seeks to correct this situation/" * ° f  * *  and the

oflJdeHxSoTltts SdSuf ""n1£  -T™ infrinsensenl of
Pressure o,.‘correctional ad m lo is t^ rsb y  " " ° ^ Ui° ns' bri”3i!53 ™due and often unfair
»har otiter offenders will become o 'TendiV v 3J? ^  Corf  rTlun,i>’- Administrators also fear
^  will lead to tension w i ^  T p ^  ^ 7 ^ ^  ?  * * * ’ and
conducive to rehabilitation. 1 ^tend thai terrain expression is not

interferences w n l f f r J e d ^  .°f Sl!?p0rt for K3»iatior.s involving
its inevitable tensions and h o s t i n g  speech

^ ' n o ^ T ^ [Cd °r irn2fned- dC5S Rot 2l-c
•ts mevitabic inaccuracies and perceptions is as usefufto the
political process. Much of the current interns'm correction- J  \  “  t0 L‘e
been developed because of the com-hinrs ,r  a . ;m arT10r° rhe general public has
proceedings. !: is dear that nun- sudi - \  “ '•nw£,f. generally transmitted through court
many are mi* A (u "  !  « ■ * »  or not supported in f i t .  But
be false. Corrections has much \ o  cah 'an  • r^ l ^  ,deas "  ,nany of wh5ch will turn out to 
discussion of correctional practices? ° * tC ° %°  b'V  alIow,n= and encouraging public

**•'#«<*>*■ 'soli-to! -uj-pt"najs 'vl,J‘ls
2? r t r  r*  *•“?..w oS arxssst

■ "  » fc«b  diversity is to ta l..,I  v'louUl n.,t b.

For Notes



For N otesFor N otes

i ' .

prqcecied from views they find offensive while confined. It is not appropriate training for their 
eventual release. In the prison setting, however, unlike free society, an individual cannot always 

. escape offensive views. The audience, as well as the speaker, is confined in. a limited area. Where 
tensions are great and a threat of violence clear, correctional authorities can act. Speech not 
/ ‘conductive t.o rehabilitation” implies that "rehabilitation” contemplates "forcing individual 

' offer, iers into a preset mold. It does not.

Correctional authorities should seek to assure reasonable opportunities for dissemination of 
. various points of view. Thus facilities for oral and written expression should be provided to 
' offenders' on a reasonable basis. Typewriters, pencil and paper, musical Instruments, and other
- types of material should be accessible to those offenders who desire them. Leisure activities should 
'  allow for the exchange of ideas.

In a number of instances administrative inconvenience and expense have been asserted to 
-justify interferences with, the rights of expression and association. Society incurs responsibilities

-  when it confines a person. Feeding offenders involves inconvenience nr.d expense, but no one urses 
that offenders not be fed. Rights' of expression and association cannot be withdrawn merely 
because they may require actions on the part of correctional staff. In addition, facilitation of 
expression or association is effective correctional treatment and should not be considered 

."inconvenient” but a part of the staffs responsibility. '

- '•. The extent to which administrative expense should justify prohibitions on free expression 
. poses difficult issues, in ail the rights proposed in this chapter there is a distinction between what 
. the government must provide and what the government must allow. If die request of the offender 

rehtei to his rights of expression or association and he is willing to pay for the exercise of those 
. rights, then the correctional authorities.should not interfere. In some instances, however, the 

correctional agency should be obligated to provide facilities or opportunities at governmental 
expense.

a

;. ; Two concepts should govern determinations as to when expense justifies inaction. If the 
-■expense U reasonable in light of existing rea'cces and in relationship to the benefit to be 
~ obtained, the expenditure should be made. Likewise, if the government expends funds to facilitate 
~ the rights of some offenders, it is obligated to expend proportionally for all offenders. For 
■ example, to allow Black Muslims to abide by their dietary restrictions on eating pork may require 
some nominal expenditure. Reasonable substitutes for pork do exist. However, if some religious 
faith required champagne and pheusani under glass for every' mwl, the cost would be 
disproportionate to the cost of providing meals generally and might be considered unreasonable.

*

••• •- -The courts generally have not had tiie opportunity to decide questions regarding inmates’ 
; nights to organize or belong to various organizations and their right to peacefully assemble. In 

■Roberts v. Pepersack, 256 F. Supp. 415 (D. Mu. 1966;, the court found no constitutional right to 
promote an organization that would advocate open defiance of authority within a prison. The 
court does not deal with the right to organize generally where the motive does not constitute a 
danger to rrison security.

>y
Implicit in the cases involving religious freedom is the ability to belong to various religious 

organizations. Organizations such as Alcoholics Anonymous and Junior Chambers of Commerce 
long have been utilized vvithin institutions. The f.rst amendment should similarly protect an 
offender s right to belong the political organizations as long as the organization does not present a 
clear and present danger to a compelling state interest. Reasonable regulations designed to provide



For Soles

1

i

j For '
correctional administrators with information concerning the aims, procedures, and membership of ; 
organisations within institutions may be justified provided such refutations are applied equally to j 
all organizations end r.re not used to harass individual offenders or unpopular organisations. Such ! 
regulations should relate to the legitimate objectives of the agency in allocating facilities for 
organizational meetings, scheduling events, and maintaining institutional security.

The right to assemble is particularly sensitive within trie context of a correctional institution.
The tension bred by close confinement may be exacerbated by large gatherings of offenders. Thus 
the dance; of violence may be more easily shown within the prison environment than in the free 
community. 'But the test of a ciear and present danger should be applicable.

In addition to the expression of particular idea? cr beliefs, the first amendment has been held 
in some circumstances to assure a person the right to maintain his identity. Seme courts, while not i 
relying on tire firs; amendment, have found other constitutional provisions which protect an j 
individual in his manner of dress or the style in which he wears his hair. These freedoms as applied 
to school children have caused conflict and controversy in tire courts, with seme courts accepting 
the view that school authorities have a substantial burden to justify regulations affecting 
appearance. Courts that have confronted similar claims by ccmmitred offenders have been 
reluctant to overturn prison regulations prohibiting facial hair.

Several studies of prisons have indicated that their mosi degrading feature is their. ■ 
dehumanizing influence on prisoners. The institution for purposes increasingly difficult to justify, 
withdraws from confined offenders ail semblances of 'their separate identity. Offenders wear 
similar clothing. Each has his hair cut the same way. Each is given a number rather than retaining 
Ills nalne. The effect of this approach is becoming increasingly clear. Offenders lose whatever 
self-respect they have; their adjustment to free society upon release is made more-difficult if not 
impossible. Prohibiting offenders from maintaining their identifies defeats the purposes of 
corrections. f.

■Correctional authorities undoubtedly have a compelling interest in being able to identify 
committed offenders. In some instances the ability of offenders to effectuate extreme alterations 
in appearance within a short period of time may constitute a justification for reasonable 
regulations. The recommendation thus contemplates that while offenders should be allowed to 
maintain individuality through clothing, hair styles, and other appearance-related characteristics, 
the correctional authorities should be authorized to promote reasonable regulations to maintain - 
case of identification. However, this justification should be subject to the same restraint that the 
least drastic regulation be adopted. And if the recommendation limiting the size of institutions is 
accepted, the ‘likelihood of inability to identify prisoners will decrease.

There is no evidence that the requirements of sanitation — so often asserted by correctional 
authorities to justify rules prohibiting facial hair or longhair -  require an absolute prohibition. 
Regulations assuring normal cleanliness should be sufficient.

References * .

1. Partial v. RcJrcn, 410 F. 2d 905 (D. C. Cir. 1969) (“'Treatment that degrades the 
inmate, invades his privacy, and frustrates tire ability to choose pursuits through which he 
can manifest himself and gain scif-respcct erodes, the very foundations upon which he can . 
prepare for a socially useful life.’’)

'■acs



For Notes I'or Notes
2. Dis'h'i> v. Colaw. 450 F. 2d 1060 (Rtli Cii. 1071) (Overturning dress code regulations for 

school chilJrcn).
w

3. Ci hen. Fred. Vic Legal Challenge to Correa inns. Washington: Join! Commission on
Correctional Manpower and Training. !l-69. (. Ii. ill. i  •

4. Goidfarb and Singer, Redressing Prisoners' Grievances, 30 Geo. Wash. L. Rev. 221-223
(I960) (Free expression generally). • . .

5. Nolen v. Fitzpatrick. 451 F. 2d 545 (1st Cir. 1971) (First amendment protects prisoner-la' 
speech, with newmtdia and invalidates prison rule against correspondence with press.)

6. Pabnigisno r. Travisino. 317 F. Supp. 776 (D.K.I. 1070) (Affirming freedom of
publishers to circulate materials to prisoners except for hard core pornography). "

7. Penh r. Templar, 453 F. 2d 33? (10th Cir. 1971) (Invalidating parole condition barring
expression of opinion as to constitutionality of federal income tax law). . t

S. Shakur r. McGrath, 303 F. Supp. 303 (S.D.N.Y. 1969) (Permitting inmate members of- 
Black Panther Party to read party magazine subject to.correctional authority discrilibay. 
on dissemination to other inmates and when and how Panthers could read the periodical)..

C|. Sobel! r. Reed. 327 F. Supp 1294 (S.D.N.Y. 1971) (Invalidating application oi parole 
conditions to prevent parolee from peacefully participating in 1969 and 1970 Washington ' 
peace marches). . '  ■

10. Se>snc r. McGinnis. 442 F. 2d 17S (2d Cir. 1971) (Affirms lower court order prohibiting 
punishment of offender for constitutionally protected speech in written and oral form.)

11. Sostre i’. Otis, 330 F. Supp. 941 (S.D.N.Y. 1971) (Requiring notice to prisoner and 
opportunity to be heard before v.ithoicling access to radical literature and periodicals 
otherwise proiCvted as part of first amendment speech).

12. Turner. Establishing the Ride o f Law in Prisons: A Manual for Prisoners’ Rights
Litigation, 23 Stan. L. Rev. 473 (1971). • ••

Related Standards

2.1 Access to Courts :

16.2 Administrative Justice

16.3 Code of Offenders’ Rights

5.9 Continuing Jurisdiction of Sentencing Court 

11.7 Coping v i'.li Alienation and Coercion



For Norcs

i

CORRECTIONS

• STANDARD 2.2

ACCESS TO LEGAL SERVICES 
\ <

Eacli correctional agency should immediately develop and implement policies and procedures 
to fulfill the right cf offenders to have access to legal assistance, through counsel or counsel 
substitute, with problems or proceedings relating to their custody, control, management, or legal 
affairs while under correctional authority. Correctional authorities have a responsibility to 
facilitate access to such assistance and to assist offenders affirmatively in pursuing their legal 
rights. Governmental authority in genera! has a responsibility to furnish adequate attorney 
representation and, where appropriate, lay representation to meet the needs cf offenders without 
the financial resources to retain such assistance privately.

The proceedings or matters to wliich tins standard applies include the following:

1. host convict ion proceedings testing the legality of conviction or confinement.

2. Proceedings challenging conditions or treatment under confinement or other correctional 
supervision.

3. Probation revocation and parole granting and revocation proceedings.

4. Disciplinary proceedings in a correctional facility that impose major penalties and 
deprivations.

5. Proceedings or consultation in connection with civil legal problems relating to debts, 
marital status, property, or other personal affairs of the offender.

In the exercise of the foregoing rights:

1. ' Attorney representation should be required for all proceedings or matters related to the
foregoing items 1 to 3, except that law students, if approved by rule of court or other 
proper authority, may provide consultation, advice, and initial representation to 
offenders in presentation of pro sc postconviction petitions.

2. In all proceedings or matters described herein, counsel substitutes (law students, 
correctional staff, inmate paraprofessionals, or ether trained paralegal persons) may be 
used to provide assistance to attorneys of record or supervising attorneys.

3. Counsel substitutes may provide representation in proceedings or matters described in 
foregoing items 4 and 5, provided the counsel substitute lies been oriented and trained by 
qualified attorneys or educational institutions and receives continuing supervision from 
qualified attorneys.

4. Major deprivations or penalties should include loss of “gobd time,” assignment to
, isolation status, transfer tc another institution, transfer to higher security or custody

status, and fine or forfeiture of inmate earnings. Such proceedings should be deemed to 
include administrative classification or reclassification actions essentially disciplinary in 
nature; that is. in response to specific acts of misconduct by the offender.

For Notes



CORRECTIONS

For Notes

j

5. Assistance from other inmates should be proliibitcd only if legal counsel is reasonably
available in the institution. v,

6. The access to legal services provided for herein should apply to all juveniles under 
correctional control.

7. Correctional authorities should assist inmates in making confidential contact with 
attorneys and lay counsel. This assistance includes visits during normal institutional 
hours, uncensorcd correspondence, telephone communication, and special consideration 
for afterhour visits where requested on the basis of special circumstances.

Commentary

Right to 2 nd availability of counsel, both in court litigation and critical phase's of 
-administrative decisionmaking on offender status, has been a major trend in the current expansion 
of prisoners’ rights. The presence of counsel assures that the complicated adversary proceeding is 
carried out properly and that the factual bases for decisionmaking are accurate. This standard' 
seeks to address virtually all issues row the.subject of debate and does so without distinction . 
between the indigent and nomndigent offender. ‘ ' . , . .. ..

The emphasis on a full range of legal services is consistent with the opinion of today’s 
correctional administrators. In a recent national survey among correctional leaders (system 
administrators, institutional wardens, and treatment directors), majorities in each category 
expressed the view that legal sendee programs should be expanded. Corrections officials stated this 
expansion would preside a safety valve for grievances and help reduce inmate tension and power- 
■structures. They also said it would not have adverse effects on prison security and would proside.a 
positive experience contributing to rehabilitation. .• .

Representation of offenders in postconsiction status always has lagged considerably behind 
that of the criminally accused. Although indigent defendants constitutionally are entitled to' 
appointed counsel at their trial or appeal, lassycrs have nor generally been available to represent 
ofienaers seeking pcstecnviction relief or challenging prison or supervision conditions through civil 
suits or administrative procedures. Where the right is asserted as part of administrative procedure - 
(for example, parole revocation and forfeiture of good time), counsel often is flatly denied, even 
when tire offender has the means to retain his own lawyer.

Access to representation tor those confronted by private legal problems such as divorce, debt, 
or social security claims is virtually nonexistent except for a few experimental legal aid. law 
school, or bar association programs. The offender must take lus place at the bottom cf the ladder 
of die still modest but growing national commitment to provision of legal services for the poor. In 
summary, prisoners generally must represent themselves, even though many arc poorly educated 
and functionally illiterate. .. . "

The standard asserts a new right to representation for major disciplinary proceedings within 
correctional systems and to civil legal assistance. Here the principle of “counsel substitute” or “lay 
representation” is accepted, consistent with those court decisions that have examined the is^ue, 
the realities of effective correctional administration, and limited attorney resources for such 
services. The Supreme Court indirectly sanctioned by representation, even in court actions, when 
it held in Johr.son v. Avery, 393 U.S. 483 (1969), that States not providing reasonable legal service 
alternatives could not bar assistance to other prisoners by “jailiiousc lawyers.”

For N otes



CORRECTIONS

For Note*
Recognizing the large and probably unmanageable burden on existing attorney resources, the 

standard validates supplemental use of lay assistance (law students, trained correctional staff, 
jailhouse lawyers, or other para professionals) .even iri matters requiring, formal attorney 
representation. In tins regard, a recent judicial observation in a California case dealing with right to 
counsel in parole revocation is instructive. The ruling, In rc Tucker, 9 Crim. L. Rptr. 2307 (Cal. 
Sup. Ct., 1971). stated:

Formal hearings, with counsel hired or provided, for the more than 4,000 parole suspensions annually 
would atone reo,uire an undertaking of heroic priecilions. But that is only the beginning. For if there is a 
right to counsel at parclc revocation or suspension proceedings, no reason in law or logic can be advanced 
why a prisoner, appearing before the Adult Authority as an applicant for parole and seeking to have his 
indeterminate sentence made determinate, should not also have legal representation. The conclusion is 
inescapable that my dissenting brethren arc in effect insisting upon counsel for a potential c f  32,000 
appearances annually: 28.000 parole applicants and 4,000 parole rcvokccs. This monumental 
requirement would stagger tit: imagination.

This standard rejects that view. If the criminal justice system must provide legal counsel in 
every instance where a mart’s liberty may be jeopardized, as the Supreme Court of the United 
St2 tes held in Argersinycr v. HarrJin, 92 Sup. Ct. 2005 (1972), its duty should not end there. Tile 
system must and can find wavs to meet the cost involved. In oilier situations where liberty is not 
directly at stake, those serving as counsel substitutes would be required to receive reasonable 
training and continuing supervision by attorneys. The opportunity tiris presents for broadening of 
perspectives on the part of correctional staff and a new legitimacy and vocational path for the 
trained “jailhouse lawyer” may prove to be valuable by-products. In addition, full cooperation 
with correctional authorities by public defender programs, civil legal aid systems, law schools, bar 
groups, and federally supported legal service offices for the poor will be necessary' to put the 
standard Into practice.

Careful definition of those major disciplinary penalties involving the right to representation 
has been undertaken. There is genera! agreement on the substance of these penalties, including 
solitary' confinement, loss of good time, and institutional transfer. Reasonable minimums have 
beeti established that would permit handling limited penalties in these categories by' less forma! 
procedure and without counsel or counsel substitute. Tiie Federal system and several Siate systems 
already are making provision for representation while considering major disciplinary sanctions.

It will be noted that “classification piocccdings” cannot be used under the standard to avoid 
disciplinary sanctions where the basic issue involved is offender misconduct. A preferred status 
also has been established for use of attorneys rather than counsel substitute, wherever possible.

, In the juvenile area, the standard makes clear that right to counsel applies to the “person in . 
reed of supervision” category or other juveniles under correctional custody for noncriminal 
conduct.

Finally, the right to free and confidential access between offenders and attorneys through 
visits, correspondence, and, where feasible, telephonic communication is made clear. Beyond that, 
a policy' of special accommodation is suggested where the circumstances of the legal assistance 
being rendered reasonably support such a preference, as in afterhour visits and special telephone 
calls. Past interference In some jurisdictions with confidential and free inmate-attorney access is 
documented in recent case law -  for example. In re Ferguson, 361 P. 2d 417 3 (Cal. 1961) (State 
supreme court forbids authority io censor or screen letters to attorneys) arid Stark y. Cory, 62 
Wash. 2d 371 (Wash. 1963) (electronic eavesdropping of attorney interviews banned) — and thus 
warrants that this critical facet of the attorney-client te-lationsltip be emphasized.

For N otes



CORRECTIONS

For .Wales !
References

* 1
J. American Bar Association. Standards Relating to Probation. New York: Office of the 

Criminal Justice Project, 1968, geCi 5 4 . u‘

2' * * « " * ' '*  Frmkl!'“  &"*•*■ NewYo,k. Ofi.ee of fbc Crimm.1 Jusi.ee Projcci, I o6s. Scc. 4.2 on "Colleierel Proceeding •’ 
and Appendix B on Standards for Defender Systems.”

For Kates

3. Argersinger v. Hamlin, 92 Sup. Cl. 2006 ( 1972).

“■ s e a s * ™ for iu!,ice' “pc'5p=c,ivB ™ p'is°"
5- Ri$!"  *  C W "  f m , e  X m xai° * «**•**•9 H « « «  L,

6. Jacob and Sharna, Justice After Trial: Prisoner's Need for Lead Servicet in the C rrrrJf 
Conecrionc!Process, IS Kan. L. Rev. 505<3970). . . Cr,r!'lJ l

7' m' 39? US' 483 <>*»> W *»S ieie  presided no reesoneWe nliern.-n-"
it could not pi cm bit the operations of the “jaiihoyse lawyer",) . ‘ "

*• * ' Z Pf  ' )  F C '-389 V S - 138 (,9f,7) W  10 counsel affirmed in defer,W
sen.cnemg/probanon revocation proceedings conducted by State courts.)

9. Note, 1968 Duke L. .1.493.

10. Note, 19 Stan. L. Rev. SS7 (1967).

11 - Note, 1967 Wis. L. Rev. 514. •. :

Related Standards

. 3.1 Access to Courts ... .

2.3 Access to Lena! Materials - - ■

16.2 Administrative Justice

16.3 Code of Offenders’ Rights 

5.9 Continuing Jurisdiction of Sentencing Court 

6.2 Classification for Inmate Management

1 2 . 3  T h e  P a r o l e  G r a n t  H e a r i n g

12.4 Revocation Healings



T