Pretrial Inmates; Final Rule DEPARTMENT OF JUSTICE

Federal RegisterNov 22, 1994

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SUMMARY: In this document, the Bureau of Prisons is amending its rule

on Pretrial Inmates. Changes made in this amendment include the

addition of provisions for the review of the pretrial inmate's status,

the replacement of references to waiver of separation, and a revision

of the definition of ``pretrial inmate'' to clarify that the definition

does not include an inmate who is awaiting sentence once the Bureau has

received notification of the conviction. This document also makes

several other procedural, editorial, and nomenclature changes. This

amendment is intended to update Bureau of Prisons policy regarding

pretrial inmates.

EFFECTIVE DATE: November 22, 1994.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,

320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its rule

on Pretrial Inmates. A final rule on this subject was published in the

Federal Register November 13, 1980 (45 FR 75133). For the convenience

of the reader, the entire text of the rule is being published. A

summary of the changes follows.

The subpart has been revised to remove gender-specific references.

In addition, various editorial and conforming amendments (such as

revising ``pre-trial'' to read ``pretrial'') have been made as

necessary. These editorial and conforming amendments make no change in

the intent of the regulations.

Section 551.100 is revised for the sake of clarity and to include a

statement that pretrial inmates will be separated, to the extent

practicable, from convicted inmates. The practicability of separation

is contingent upon the design, structure, and operation of the

individual institution. Where it is not practicable to keep all

pretrial inmates separate, after intake screening and assessment,

Bureau staff may, based upon sound correctional judgment, permit

inmates who do not present a risk to the security or orderly running of

the institution to have regular contact with convicted inmates. As part

of its mandate to provide for the care, custody, control, treatment,

and instruction of inmates, the Bureau provides a range of programming

opportunities to convicted inmates. These programming opportunities may

be made available to pretrial inmates if staff determine that such

would be consistent with institution security and good order. Pretrial

inmates will have the opportunity to discuss separation needs with

staff during intake screening and reviews. Previously, the Bureau

provided for inmates to request a waiver of separation. Under this

former procedure, Bureau staff were still responsible for making the

determination to maintain or not to maintain separation for pretrial

inmates. This revision, therefore, does not lessen the Bureau's

commitment to provide for the safety of pretrial inmates.

Section 551.101 is revised and reorganized for the sake of clarity.

New paragraph (a) introductory text is revised to clarify that

``pretrial inmate'' means a person who is legally detained but for whom

the Bureau has not received notification of conviction. A person who

has pleaded or been found guilty and who is awaiting sentence is not

considered to be a pretrial inmate once the Bureau has received

notification of conviction. This change is consistent with the

provisions of 18 U.S.C. 3142(i)(2) which states that pretrial inmates

are to be kept separate, to the extent practicable, from persons

awaiting or serving sentences. New paragraph (a)(1) substitutes the

phrase ``deportable alien'' for ``detained alien'' to better clarify

the intent of this paragraph. New paragraph (a)(2) specifies which

types of mental health commitments under 18 U.S.C. Chapter 313 should

be considered as pretrial inmates. Inmates who have been committed to

the Bureau for long-term custody and who are not awaiting further court

proceedings are not considered to be pretrial inmates. Former paragraph

(a)(2) is reworded and redesignated as new paragraph (a)(3). Paragraph

(b) is revised to remove administrative references to the Judgment and

Commitment form. The sentencing court uses that form to provide notice

of conviction to the Bureau, ordinarily following imposition of

sentence. Procedures for receiving notice of conviction are included in

implementing instructions to staff.

Section 551.103 is amended by adjusting the codification

designations (former paragraph (a) becomes introductory text, and

subordinate paragraphs (a)(1), (2), etc. become (a), (b), etc.) for the

sake of editorial consistency. The nomenclature used in the

introductory paragraph has been revised (the phrase ``institutions with

detention-unit operations'' has been replaced by the phrase

``administrative institutions or institutions with administrative

components housing U.S. Marshals' prisoners''). Newly designated

paragraph (e) is revised to remove redundant information contained in

the Bureau's rule on Intake Screening (see 28 CFR 522, subpart C) and

to include reference to separation advisory. Newly designated paragraph

(f) is revised to specify that institution guidelines governing

telephone calls, including procedures for making unmonitored calls to

an attorney, are provided to pretrial inmates rather than advice on

these guidelines. This revision ensures that pretrial inmates will have

complete guidance on the use of telephones at their disposal. A new

paragraph (i) is added to specify that pretrial inmates shall have the

opportunity to waive the right not to work, and former paragraph (a)(9)

is redesignated as new paragraph (j).

Section 551.104 is revised to state that, to the extent

practicable, pretrial inmates will be housed separately from convicted

inmates.

Section 551.105(a) is revised to clarify that staff ordinarily will

supervise a pretrial inmate as if classified ``In'' custody. There is

no change in the intent of this section.

Section 551.106 has been revised for the sake of clarity. There is

no change in the intent of this section.

Changes in statutory authority have removed provision of good time

for inmates whose offenses were committed after November 1, 1987.

Consequently Sec. 551.107 is removed, and a new Sec. 551.107 is added

containing provisions for review of pretrial inmate status. These

reviews afford pretrial inmates the opportunity to discuss with staff

factors relating to the inmate's detention.

The statute referenced in Sec. 551.109 is changed to reflect the

current provision. The intent of this section is unchanged.

Section 551.110 has been revised to remove references to waiver of

separation. As revised, paragraph (b) specifies that pretrial inmates

who do not participate in religious programs with convicted inmates

have access to other religious programs.

Section 551.111 is revised to indicate that the U.S. Marshals

Service is also to be contacted for comment on a pretrial inmate's

marriage request.

In Sec. 551.112, paragraph (b) is amended to remove reference to

waiver of separation. As revised, this paragraph specifies that

pretrial inmates may be allowed the opportunity to have access to the

institution's educational program when consistent with institution

security and good order. Previously, this paragraph stated that such

inmate may have full access. Some Bureau programs, for reasons of

institution security and good order, may be inappropriate for pretrial

inmates.

In Sec. 551.113, paragraph (a) has been revised to remove reference

to waiver of separation and to specify that pretrial inmates may be

allowed the opportunity to receive counseling services with convicted

inmates when consistent with institution and good order. Paragraph (b)

has been revised to specify that staff shall ensure that pretrial

inmates who do not receive counseling services with convicted inmates

have access to other counseling services.

In Sec. 551.115, paragraph (a) has been revised to remove reference

to waiver of separation and to specify that pretrial inmates may be

allowed the opportunity to participate with convicted inmates in

recreational activities when consistent with institution security and

good order or have access to other recreational activities. Paragraph

(b) has been amended to clarify the intended meaning of a pretrial

inmate in regular population. As revised, paragraph (b) now includes a

cross reference to conditions for pretrial inmates in Administrative

Detention or Disciplinary Segregation. Paragraphs (d) and (e) have been

reordered for organizational reasons. There is no change in the intent

of this section.

In Sec. 551.116, the word ``continuing'' is replaced by the word

``serious''.

Because these changes impose no further restrictions on inmates,

deal with agency procedures designed to help ensure the continued

protection of inmates, or conform to statutory provisions, the Bureau

finds good cause for exemption from the provisions of the

Administrative Procedure Act (5 U.S.C. 553) requiring notice of

proposed rulemaking, the opportunity for public comment, and delay in

effective date. Members of the public may submit comments concerning

this rule by writing the previously cited address. These comments will

be considered but will receive no response in the Federal Register.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of E.O. 12866; this rule

was reviewed by the Office of Management and Budget. After review of

the law and regulations, the Director, Bureau of Prisons has certified

that this rule, for the purpose of the Regulatory Flexibility Act (Pub.

L. 96-354), does not have a significant impact on a substantial number

of small entities.

List of Subjects in 28 CFR Part 551

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), subchapter C of 28 CFR chapter V

is amended as set forth below.

Subchapter C--Institutional Management

PART 551--MISCELLANEOUS

1. The authority citation for 28 CFR 551 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 1512, 3621, 3622, 3624, 4001,

4005, 4042, 4081, 4082 (Repealed in part as to offenses committed on

or after November 1, 1987), 4161-4166 (Repealed as to offenses

committed on or after November 1, 1987), 5006-5024 (Repealed October

12, 1984 as to offenses committed after that date), 5039; 28 U.S.C.

509, 510; Pub. L. 99-500 (sec. 209); 28 CFR 0.95-0.99; Attorney

General's August 6, 1991 Guidelines for Victim and Witness

Assistance.

2. In 28 CFR 551, subpart J, consisting of Secs. 551.100 through

551.120, is revised to read as follows:

Subpart J--Pretrial Inmates

Sec.

551.100 Purpose and scope.

551.101 Definitions.

551.102 Commitment prior to arraignment.

551.103 Procedure for admission.

551.104 Housing.

551.105 Custody.

551.106 Institutional employment.

551.107 Pretrial inmate reviews.

551.108 Performance pay.

551.109 Community activities.

551.110 Religious programs.

551.111 Marriage.

551.112 Education.

551.113 Counseling.

551.114 Medical, psychiatric and psychological.

551.115 Recreation.

551.116 Discipline.

551.117 Access to legal resources.

551.118 Property.

551.119 Release of funds and property of pretrial inmates.

551.120 Visiting.

Subpart J--Pretrial Inmates

Sec. 551.100 Purpose and scope.

In addition to convicted inmates, the Bureau of Prisons houses

persons who have not been convicted. Procedures and practices required

for the care, custody, and control of such inmates may differ from

those established for convicted inmates. Pretrial inmates will be

separated, to the extent practicable, from convicted inmates. Except as

specified by this rule, policies and standards applicable to persons

committed to the custody of the Attorney General or the Bureau of

Prisons apply also to pretrial inmates as defined in Sec. 551.101.

Sec. 551.101 Definitions.

(a) Pretrial inmate. For purpose of this rule, ``pretrial inmate''

means a person who is legally detained but for whom the Bureau of

Prisons has not received notification of conviction. Thus, ``pretrial

inmate'' ordinarily includes a person awaiting trial, being tried, or

awaiting a verdict.

(1) Civil contempt, deportable aliens, or material witnesses. For

purpose of this rule, an inmate committed for civil contempt, or as a

deportable alien, or as a material witness is considered a pretrial

inmate.

(2) Mental evaluation or treatment. An inmate committed under Title

18 U.S.C. Sections 4241 (b) and (d), 4242(a), or 4243(b) is considered

to be a pretrial inmate, whereas commitments under Sections 4243(e),

4244, 4245 or 4246 are treated as convicted inmates.

(3) Concurrent federal and state sentences. For purpose of this

rule, an inmate in a status described in paragraph (a) introductory

text, (a)(1), or (a)(2) of this section and who is at the same time

serving a state or federal sentence is not considered a pretrial

inmate.

(b) Convicted inmate. For purposes of this rule, an individual a

court has found guilty of an offense punishable by law.

Sec. 551.102 Commitment prior to arraignment.

On receipt of a U.S. Marshal remand, the Bureau of Prisons shall

accept an individual who has not been arraigned for commitment as a

pretrial inmate, provided that the institution has appropriate

detention facilities available for that individual.

Sec. 551.103 Procedure for admission.

Staff in administrative institutions or institutions with

administrative components housing U.S. Marshals' prisoners shall

establish procedures for admitting a pretrial inmate which include, but

are not limited to:

(a) Verification of commitment papers;

(b) Search of the inmate;

(d) Disposition of clothing and personal possessions;

(e) Intake screening (including Notice of Separation);

(f) Providing institution guidelines governing telephone calls

(including procedures for making unmonitored calls to an attorney);

(g) Provisions for personal hygiene, to include:

(1) Issue of personal hygiene items;

(2) Issue of clean clothing; and

(3) Opportunity for shower and hair care;

(h) Orientation;

(i) Opportunity for waiver of right not to work;

(j) Assignment to an appropriate housing unit.

Sec. 551.104 Housing.

To the extent practicable, pretrial inmates will be housed

separately from convicted inmates.

Sec. 551.105 Custody.

(a) Staff ordinarily will supervise a pretrial inmate as if

classified ``In'' custody.

(b) Where circumstances warrant, staff may supervise a pretrial

inmate according to procedures for other custody levels.

Sec. 551.106 Institutional employment.

Unless a pretrial inmate signs a waiver of his or her right not to

work, the Warden may not require the inmate to work in any assignment

other than housekeeping tasks in the inmate's own cell and in the

community living area.

Sec. 551.107 Pretrial inmate reviews.

Staff shall conduct regular reviews of a pretrial inmate's status.

(a) Each pretrial inmate shall be scheduled for an initial review

by the unit team within 21 calendar days of the inmate's first arrival

at the institution, and subsequent reviews shall be conducted at least

every 90 days.

(b) The inmate shall be notified at least 48 hours prior to the

inmate's scheduled review.

inmate refuses to appear, staff shall document in the record of the

meeting the inmate's refusal and, if known, the reason for refusal.

(d) Inmate reviews are to be documented on the Pretrial Inmate

Review Report.

Sec. 551.108 Performance pay.

The Warden may approve a pretrial inmate for performance pay and

special awards.

Sec. 551.109 Community activities.

(a) The Warden may not grant a furlough to a pretrial inmate (18

U.S.C. Sec. 3622).

(b) In an emergency, staff shall facilitate contact with the

pretrial inmate's attorney of record, who may seek from the court a

decision concerning release from custody or an escorted trip.

considered for participation in community programs.

Sec. 551.110 Religious programs.

(a) When consistent with institution security and good order,

pretrial inmates may be allowed the opportunity to participate in

religious programs with convicted inmates.

(b) Staff shall ensure that pretrial inmates who do not participate

in religious programs with convicted inmates have access to other

religious programs.

Sec. 551.111 Marriage.

A pretrial inmate may request permission to marry in accordance

with current Bureau of Prisons policy for convicted inmates. Staff

shall contact the court, U.S. Attorney, U.S. Marshals Service, and in

the case of an alien, the Immigration and Naturalization Service, to

advise of the marriage request of the pretrial inmate and to request

their comments.

Sec. 551.112 Education.

(a) A pretrial inmate may participate in correspondence and self-

study educational courses. Institutional staff may also arrange for

educational assistance to the pretrial inmate through the use of

contract personnel or community volunteers.

(b) When consistent with institution security and good order,

pretrial inmates may be allowed the opportunity to have access to the

institution's educational program.

Sec. 551.113 Counseling.

(a) When consistent with institution security and good order,

pretrial inmates may be allowed the opportunity to receive counseling

services with convicted inmates.

(b) Staff shall ensure that pretrial inmates who do not receive

counseling services with convicted inmates have access to other

counseling services.

Sec. 551.114 Medical, psychiatric and psychological.

(a) Staff shall provide the pretrial inmate with the same level of

basic medical (including dental), psychiatric, and psychological care

provided to convicted inmates.

(b) Staff shall advise the court, through the U.S. Marshal, of

medication the pretrial inmate receives which may alter the inmate's

courtroom behavior.

staff shall notify the committing court, U.S. Marshal, U.S. Attorney's

Office, the inmate's attorney of record, and the designated family

member or next of kin.

Sec. 551.115 Recreation.

(a) When consistent with institution security and good order,

pretrial inmates may be allowed the opportunity to participate with

convicted inmates in recreational activities. Staff shall ensure that

inmates who do not participate in recreational activities with

convicted inmates have access to other recreational activities.

(b) At a minimum, and except as noted in paragraph (d) of this

section, staff shall provide the pretrial inmate with the following

recreational opportunities:

(1) One hour daily of outside recreation, weather permitting; or

(2) Two hours daily of indoor recreation.

inmate including, but not limited to, physical exercise equipment,

books, table games, and television.

(d) Staff shall provide the pretrial inmate housed in

Administrative Detention or Disciplinary Segregation with exercise as

provided by the Bureau of Prisons rules on Inmate Discipline. (See 28

CFR part 541, subpart B.)

(e) Provisions of paragraphs (b) and (c) of this section must be

carried out unless compelling security or safety reasons dictate

otherwise. Institution staff shall document these reasons.

Sec. 551.116 Discipline.

(a) Staff shall require the pretrial inmate to abide by Bureau of

Prisons rules on Inmate Discipline (see 28 CFR part 541, subpart B),

subject to the limitations of Sec. 551.106 of this part.

(b) Staff shall advise the court, through the U.S. Marshal, of

repeated or serious disruptive behavior by a pretrial inmate.

Sec. 551.117 Access to legal resources.

(a) The Warden shall provide the opportunity for pretrial inmate-

attorney visits on a seven-days-a-week basis.

(b) Staff shall provide pretrial inmates with access to legal

materials in the institution.

request, to telephone the inmate's attorney as often as resources of

the institution allow.

Sec. 551.118 Property.

(a) A pretrial inmate may retain personal property as authorized

for convicted inmates housed in administrative detention units. (See 28

CFR part 541, subpart B.)

(b) Staff may store the pretrial inmate's unauthorized personal

property until the individual is released, transferred to another

facility, or sentenced and committed to a federal institution.

appearances, or the inmate may supply his or her own.

Sec. 551.119 Release of funds and property of pretrial inmates.

(a) Staff shall establish procedures which allow for the release of

funds and personal property to pretrial inmates released during other

than normal business hours.

(b) Staff shall ensure that pretrial inmates are informed of

existing policy relative to the commissary account and the deposit/

release of funds.

Sec. 551.120 Visiting.

Staff shall allow pretrial inmates to receive visits in accordance

with the Bureau's rule and local institution guidelines on visiting.

Staff may allow a pretrial inmate special visits to protect the

inmate's business interests or to help prepare for trial.

[FR Doc. 94-28829 Filed 11-21-94; 8:45 am]

BILLING CODE 4410-05-P

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