Inmate Legal Activities and Inmate Personal Property

SUMMARY: In this document, the Bureau of Prisons (``Bureau'') is

proposing to amend its regulations in order to set forth situations in

which one inmate may be allowed to possess the legal materials of

another inmate while assisting that other inmate. This amendment is

intended to maintain an appropriate balance between the need for

institution security, good order, and discipline and the ability of

inmates to assist each other with their legal documents.

DATES: Comments due by December 30, 1996.

ADDRESSES: Rules Unit, 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 proposing to amend

its regulations on inmate legal activities (28 CFR 543, subpart B) and

on inmate personal property (28 CFR 553, subpart B). A final rule on

inmate legal activities was published in the Federal Register on June

29, 1979 (44 FR 38263) and was amended on December 4, 1981 (46 FR

59509) and on July 23, 1990 (55 FR 29992); a final rule on inmate

personal property was published in the Federal Register on April 29,

1983 (48 FR 19573).

Existing Bureau regulations allow an inmate at an institution

without an active, ongoing legal aid program the assistance of another

inmate for purposes of legal research and preparation of legal

documents (see 28 CFR 543.11(f)). Bureau regulations on inmate personal

property specify that an inmate may possess only that property which

the inmate is authorized to retain upon admission to the institution,

which is issued while the inmate is in custody, which the inmate

purchases in the institution commissary, or which is approved by staff

to be mailed to, or otherwise received by an inmate (see 28 CFR

553.10). With respect to legal materials, Bureau regulations further

specify that an inmate may be allowed to retain those legal materials

which are necessary for an inmate's legal actions (see 28 CFR

553.11(d)). The Bureau has always taken this to mean materials which

are necessary for an inmate's own legal actions.

To maintain security and good order in the institution, the Bureau

believes that an inmate should not possess another inmate's legal

materials. Possession of such materials by another inmate may result in

extortion attempts, the exchange of contraband, or the dissemination of

information which could be used to endanger other inmates, institution

staff, or the general public. Practical complications may also arise.

For example, when inmates are transferred from one institution to

another, their legal materials could be lost or damaged, thereby

potentially affecting the inmates' ability to litigate their cases.

On occasion, inmates have been allowed to possess other inmates'

legal materials to some degree. To ensure consistency and maintain an

appropriate balance between the need for institution security, good

order, and discipline and the ability of inmates to assist each other,

the Bureau is proposing to liberalize its regulations to allow an

inmate to possess another inmate's legal materials within certain

limitations.

The proposed regulations specify that except in instances where the

Warden imposes limitations for reasons of institution security, good

order, or discipline, an inmate may possess another inmate's legal

documents while assisting that inmate in the institution's main law

library and in other locations if the Warden so designates. The inmate

being assisted must bring his or her legal materials to the law library

or other location in order to provide access to the assisting inmate.

The inmate providing assistance may not remove the legal materials from

the library or other designated location. Although the inmate being

assisted need not remain present, that inmate is responsible for

retrieving his or her legal materials. If, for example, the inmate

being assisted chooses to leave the library or other designated

location in order to recreate, that inmate must return in order to

retrieve the legal materials. Legal materials left unattended in the

law library or other designated location may be disposed of by staff as

nuisance contraband.

The institution's need for security, good order, or discipline may

limit an inmate's assistance to another inmate when an inmate is placed

in the institution's special housing unit. An inmate may be placed in a

special housing unit for various reasons including administrative

detention during the course of an investigation of allegations that the

inmate committed a prohibited act, for protection, pending transfer, or

in disciplinary segregation following a determination that the inmate

had committed a prohibited act. Security necessarily restricts access

to such inmates by inmates in the general population. Inmate assistance

therefore may only be available from other inmates already in the

special housing unit. Legal assistance from attorneys remains available

to an inmate in a special housing unit (see Sec. 543.12).

In addition to the foregoing changes, the Bureau is consolidating

the provisions pertinent to legal materials in the regulations on

inmate legal activities. The regulations on inmate personal property

will contain only a cross-reference. Other changes to the regulations

on inmate legal activities include a definition of leisure time in

Sec. 543.11(a), a revised definition of legal materials in the

introductory text of Sec. 543.11(d), a restatement of the provisions

for receipt, purchase, and retention of legal materials in

Sec. 543.11(d) (1) and (2), and a clarification to the provisions in

Sec. 543.11(h) concerning the preparation of legal documents by a

public stenographer.

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

significant regulatory action for the purpose of E.O. 12866, and

accordingly was not 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 (5 U.S.C. 601 et seq.), does not have a significant

impact on a substantial number of small entities. Because this rule

pertains to the correctional management of offenders committed to the

custody of the Attorney General or the Director of the Bureau of

Prisons, its economic impact is limited to the Bureau's appropriated

funds.

Interested persons may participate in this proposed rulemaking by

submitting data, views, or arguments in writing to the Rules Unit,

Office of General Counsel, Bureau of Prisons, 320 First Street, NW.,

HOLC Room 754, Washington, DC 20534. Comments received during the

comment period will be considered before final action is taken.

Comments received after the expiration of the comment period will be

considered to the extent practicable. All comments received remain on

file for public inspection at the above

[[Page 56097]]

address. The proposed rule may be changed in light of the comments

received. No oral hearings are contemplated.

List of Subjects in 28 CFR Parts 543 and 553

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), parts 543 and 553 in subchapter C

of 28 CFR, chapter V is proposed to be amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 543--LEGAL MATTERS

1. The authority citation for 28 CFR part 543 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part 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,

1346(b), 2671-80; 28 CFR 0.95-0.99, 0.172, 14.1-11.

2. In Sec. 543.11, paragraphs (a), (d), and (f) are revised, and

paragraph (h) is amended by revising the last sentence to read as

follows:

Sec. 543.11 Legal research and preparation of legal documents.

(a) The Warden shall make materials in the inmate law library

available whenever practical, including evening and weekend hours. The

Warden shall allow an inmate a reasonable amount of time, ordinarily

during the inmate's leisure time (that is, when the inmate is not

participating in a scheduled assignment or program), to do legal

research and to prepare legal documents. Where practical, the Warden

shall allow preparation of documents in living quarters during an

inmate's leisure time.

* * * * *

(d) An inmate's legal materials include but are not limited to the

inmate's pleadings and documents (such as a presentence report) that

have been filed in court, drafts of pleadings to be submitted to a

court (whether prepared by the inmate or by an assisting inmate

pursuant to paragraph (f) of this section), documents pertaining to an

inmate's administrative case, photocopies of legal reference materials,

and legal reference materials which are not available in the

institution main law library (or basic law library in a satellite

camp).

(1) An inmate may solicit or purchase legal materials from outside

the institution. The inmate may receive the legal materials in

accordance with the provisions on incoming publications or

correspondence (see 28 CFR part 540, subparts B and F) or through an

authorized attorney visit from a retained attorney. The legal materials

are subject to inspection and may be read or copied unless they are

received through an authorized attorney visit from a retained attorney

or are properly sent as special mail (for example, mail from a court or

from an attorney), in which case they may be inspected for contraband

or for the purpose of verifying that the mail qualifies as special

mail.

(2) Staff may allow an inmate to possess those legal materials

which are necessary for the inmate's own legal actions. Staff may also

allow an inmate to possess the legal materials of another inmate

subject to the limitations of paragraph (f)(2) of this section. The

Warden may limit the amount of legal materials an inmate may accumulate

for security or housekeeping reasons.

* * * * *

(f)(1) Except as provided for in paragraph (f)(3) of this section,

an inmate may assist another inmate in the same institution during

their leisure time (as defined in paragraph (a) of this section) with

legal research and the preparation of legal documents for submission to

a court or other judicial body.

(2) Except as provided for in paragraph (f)(3) of this section, an

inmate may possess another inmate's legal materials while assisting the

other inmate in the institution's main law library and in another

location if the Warden so designates. The assisting inmate may not

remove such legal materials (including any drafts of legal pleadings

prepared for the inmate being assisted) from the law library or other

designated location. As defined in paragraph (d), drafts of legal

pleadings are owned by the inmate being assisted. Although the inmate

being assisted need not remain present in the law library or other

designated location while the assistance is being rendered, that inmate

is responsible for retrieving his or her legal materials from the

library or other designated location. Any legal materials left

unattended in the law library or other designated location may be

disposed of by staff as nuisance contraband.

(3) The Warden at any institution may impose limitations on an

inmate's assistance to another inmate in the interest of institution

security, good order, or discipline.

* * * * *

(h) * * * Staff shall advise the inmate of any delay in the typing

of which they have received notice from the stenographer.

* * * * *

3. The authority citation for 28 CFR part 553 is revised to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,

4081, 4082 (Repealed in part as to offenses committed on or after

November 1, 1987), 4126, 5006-5024 (Repealed October 12, 1984 as to

offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28

CFR 0.95-0.99.

4. In Sec. 553.11, paragraph (d) is revised to read as follows:

Sec. 553.11 Limitations on inmate personal property.

* * * * *

(d) Legal Materials. Staff may allow an inmate to possess legal

materials in accordance with the provisions on inmate legal activities

(see Sec. 543.11 of this chapter).

* * * * *

[FR Doc. 96-27813 Filed 10-29-96; 8:45 am]

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