Inmate Discipline and Good Conduct Time

DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[BOP-1040-F]

RIN 1120-AA34

Inmate Discipline and Good Conduct Time

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Bureau of Prisons is implementing

provisions of the Violent Crime Control and Law Enforcement Act of 1994

(VCCLEA) and the Prison Litigation Reform Act of 1995 (PLRA) which make

the earning of good conduct time contingent upon exemplary compliance

with institution regulations. The list of sanctions which may be

imposed by the Discipline Hearing Officer in instances where an inmate

subject to either of these two Acts has been determined to be not in

compliance with institution regulations is accordingly being modified

to achieve this purpose.

EFFECTIVE DATES: November 3, 1997.

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 (Bureau) is amending

its regulations on inmate discipline (28 CFR part 541, subpart B).

Section 20405 of the Violent Crime Control and Law Enforcement Act of

1994 (18 U.S.C. 3624(b)) provides that a prisoner who is serving a term

of imprisonment of more than one year for a crime of violence, other

than a term of imprisonment for the duration of the prisoner's life,

may receive credit toward the service of the prisoner's sentence,

beyond the time served, of up to 54 days at the end of each year of the

prisoner's term of imprisonment, beginning at the end of the first year

of the term, subject to the determination by the Bureau of Prisons

that, during that year, the prisoner has displayed exemplary compliance

with such institutional disciplinary regulations as have been approved

by the Attorney General and issued to the prisoner.

A proposed rule on this subject was published in the Federal

Register on October 26, 1995. In that document the Bureau defined

exemplary compliance with institutional disciplinary regulations in

terms of the number of times an inmate was found to have committed a

prohibited act. Accordingly, the Bureau proposed changes to 28 CFR

541.13(a) (1), (2), (3), and (4), (f), and 541.14(a). For ease of

reference, Tables 3, 4 and 5 were revised in their entirety to

incorporate changes to sanctions B and B.1. Under the proposed

revision, when a VCCLEA inmate who has been rated as violent (i.e., an

inmate who, as specified in the Violent Crime Control and Law

Enforcement Act of 1994, committed a crime of violence on or after

September 13, 1994) is found to have committed a greatest or high

category offense during incarceration, the Discipline Hearing Officer

(DHO) must, as a minimum, impose a sanction disallowing all Good

Conduct Time (GCT) for the evaluation period. This means a loss of 54

days GCT. Sanctions to be imposed for such inmates found to have

committed moderate or low category offenses during incarceration were

also modified, though in neither case would all available GCT be

necessarily disallowed for a single incident. An accumulation of

prohibited act determinations, however, could result in such a loss.

The comment period for the proposed rule ended on December 26,

1995. The Bureau received one comment on the proposed rule. The

commenter raised two objections: the proposed rule appeared to create

inequities in inmate discipline sanctions based upon a difference of

commitment date, and the proposed rule would greatly increase the

workload of the Discipline Hearing Officer (DHO).

With respect to the apparent creation of inequities in inmate

discipline sanctions based on commitment date, the Bureau notes that

the statutory authority is explicit as to the consequences of less than

exemplary behavior by VCCLEA inmates rated as violent. Since the

statutory change potentially affects the loss of good conduct time, the

changes can only be

[[Page 50788]]

applied to persons sentenced for an offense committed after the

effective date of the Act. The statute has not been implemented

retroactively. The distinction, then, is based both on date of the

commitment offense and on the inmate's rating as a violent offender.

What was at issue in the proposed rule is what constitutes exemplary

compliance with institutional disciplinary regulations. The proposed

rule procedurally defined this as the avoidance by the inmate of

committing greatest or high category offenses. The proposed application

of intermediate sanctions based on the commission of moderate or low

category offenses by a VCCLEA inmate rated as violent fell within the

upper limit of sanctions available for other inmates. The Bureau

believes that the proposed application was supportive of the goal of

maintaining exemplary compliance by VCCLEA inmates rated as violent. As

noted below, however, the Bureau is making an adjustment in its

determination of exemplary compliance in order to avoid disparity in

the application of exemplary compliance for all inmates in accordance

with the provisions of the Prison Litigation Reform Act of 1995 (PLRA).

With respect to a possible increase in the DHO's workload resulting

from Unit Discipline Committee referrals of moderate and low category

offenses, the Bureau believes that the DHO needs to be aware of the

discipline record of VCCLEA inmates rated as violent and, if needed,

that additional resources can be considered to address an excessive

increase in the DHO's workload.

Section 809 of the PLRA amended 18 U.S.C. 3624 to require all

inmates, not only those convicted of a crime of violence, to

demonstrate exemplary compliance with institution disciplinary

regulations in order to earn good conduct time. The Bureau believes

that, having proposed an exemplary compliance standard for violent

offenders, it may adopt the standard with modification both for VCCLEA

violent offenders and for all inmates who are subject to the PLRA.

The Bureau is therefore modifying Sec. 541.13(a) and 541.14(a) to

cover PLRA inmates and revising the explanation of Sanction B.1 in

Table 4 to specify that the DHO shall impose a specific minimum

disallowance in cases involving a VCCLEA violent offender or a PLRA

inmate. The practical result of this is to establish that either one or

two 100 or 200 level offenses would result in a VCCLEA violent offender

or PLRA inmate's losing all good conduct time for the year. The wording

of Sanction B.1 need not change in Table 3. The proposed revision to

Sec. 541.13(f) eligibility for restoration of forfeited good conduct

time is not being finalized in this document. The Bureau intends to

analyze the impact of the new sanctions on good conduct time before

making a final determination. Sanction B in Table 3 and its explanation

in Table 4 have been adjusted to note that a good conduct time sanction

may not be suspended and that forfeited good conduct time will not be

restored. The prohibition on suspension of good conduct time conforms

to the treatment of disallowed good conduct time in Sanction B.1. In

adopting the proposed rule as final, the Bureau is making two further

editorial changes. Prohibited Act 109 (possession, introduction, or use

of any narcotics, etc.) is being divided into three separate prohibited

acts in order to simplify statistical reporting and analysis of such

behavior. Prohibited Act 220 is also amended to exclude drill

authorized and conducted by staff (for example, as may be given in an

intensive confinement center program). New interim regulations for the

intensive confinement center program were published in the Federal

Register on April 26, 1996 (61 FR 18658). As noted above, the

previously proposed revised sanctions are applicable to VCCLEA inmates

rated as violent (i.e., inmates who, as specified in the Violent Crime

Control and Law Enforcement Act of 1994, committed a crime of violence

on or after September 13, 1994) and to PLRA inmates (inmates who

committed offenses on or after April 26, 1996). Inmates who are

eligible for good conduct time because they were sentenced under the

provisions of the Sentencing Reform Act of 1984, but who were sentenced

for a crime of violence committed before September 13, 1994 are not

defined as ``VCCLEA inmates rated as violent'' or ``PLRA inmates'' and

consequently are unaffected by the new sanctions for those inmates.

Members of the public may submit comments concerning this rule by

writing to 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, and

accordingly this rule 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 economic impact on a substantial number of small entities,

within the meaning of the Act. 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.

List of Subjects in 28 CFR Part 541

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), part 541 in subchapter C of 28

CFR, chapter V is amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

1. The authority citation for 28 CFR part 541 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), 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; 28

CFR 0.95-0.99.

2. In Sec. 541.13, paragraphs (a)(1) through (a)(4) are revised; in

Table 3, under GREATEST CATEGORY, Sanction B is revised, the prohibited

act language in column 2 for Code 109 is revised, and new Codes 111

through 113 are added in numerical order; in Table 3, under HIGH

CATEGORY, Sanction B and the prohibited act for Code 220 are revised;

in Table 3, under MODERATE CATEGORY, Sanction B is revised; in Table 4,

Items 1.(b) and (b.1) are revised; in Table 5, item 2 under ``Sanctions

Permitted'' for Low Moderate Sanctions, Moderate Sanctions, and High

Sanctions is revised; and in Table 6, the column headings and the Note

are revised to read as follows:

Sec. 541.13 Prohibited acts and disciplinary severity scale.

(a) * * *

(1) Greatest category offenses. The Discipline Hearing Officer

(DHO) shall impose and execute one or more of sanctions A through E.

Sanction B.1 must be imposed for a VCCLEA inmate rated as violent

(i.e., an inmate who, as specified in the Violent Crime Control and Law

Enforcement Act of 1994, committed a crime of violence on or after

September 13, 1994) and for a PLRA inmate (i.e., an inmate who has been

sentenced for an offense

[[Page 50789]]

committed on or after April 26, 1996). The DHO may impose and execute

sanction F and/or G only in addition to execution of one or more of

sanctions A through E. Except as noted in the sanction, the DHO may

also suspend one or more additional sanctions A through G.

(2) High category offenses. The Discipline Hearing Officer shall

impose and execute one or more of sanctions A through M, and, except as

noted in the sanction, may also suspend one or more additional

sanctions A through M. Sanction B.1 must be imposed for a VCCLEA inmate

rated as violent and for a PLRA inmate. The Unit Discipline Committee

shall impose and execute one or more of sanctions G through M, and may

also suspend one or more additional sanctions G through M, except for a

VCCLEA inmate rated as violent. All high category offense charges for a

VCCLEA inmate rated as violent and for a PLRA inmate must be referred

to the DHO.

(3) Moderate category offenses. The Discipline Hearing Officer

shall impose at least one sanction A through N, but, except as noted in

the sanction, may suspend any sanction or sanctions imposed. Sanction

B.1 ordinarily must be imposed for a VCCLEA inmate rated as violent and

for a PLRA inmate. Except for charges referred to the DHO, the Unit

Discipline Committee shall impose at least one sanction G through N,

but may suspend any sanction or sanctions imposed. The UDC ordinarily

shall refer to the DHO a moderate category charge for a VCCLEA inmate

rated as violent or for a PLRA inmate if the inmate had been found to

have committed a moderate category offense during the inmate's current

anniversary year (i.e., the twelve month period of time for which an

inmate may be eligible to earn good conduct time). The UDC must

thoroughly document in writing the reasons why the charge for such an

inmate was not referred to the DHO.

(4) Low moderate category offenses. The Discipline Hearing Officer

shall impose at least one sanction B.1, or E through P. The Discipline

Hearing Officer may suspend any E through P sanction or sanctions

imposed (a B.1 sanction may not be suspended). Except for charges

referred to the DHO, the Unit Discipline Committee (UDC) shall impose

at least one sanction G through P, but may suspend any sanction or

sanctions imposed. The UDC ordinarily shall refer to the DHO a low

moderate category charge for a VCCLEA inmate rated as violent or for a

PLRA inmate if the inmate had been found to have committed two low

moderate category offenses during the inmate's current anniversary year

(i.e., the twelve month period of time for which an inmate may be

eligible to earn good conduct time). The UDC must thoroughly document

in writing the reasons why the charge for such an inmate was not

referred to the DHO.

* * * * *

Table 3.--Prohibited Acts and Disciplinary Severity Scale

------------------------------------------------------------------------

Code Prohibited acts Sanctions

------------------------------------------------------------------------

Greatest Category

The UDC shall refer all Greatest Severity Prohibited Acts to the DHO

with recommendations as to an appropriate disposition.

------------------------------------------------------------------------

* * * *

* * *

B. Forfeit earned

statutory good time or

non-vested good conduct

time (up to 100%) and/or

terminate or disallow

extra good time (an

extra good time or good

conduct time sanction

may not be suspended).

* * * *

* * *

109............... (Not to be used)

* * * *

* * *

111............... Introduction of any

narcotics, marijuana,

drugs, or related

paraphernalia not

prescribed for the

individual by the

medical staff

112............... Use of any narcotics,

marijuana, drugs, or

related paraphernalia

not prescribed for the

individual by the

medical staff

113............... Possession of any

narcotics, marijuana,

drugs, or related

paraphernalia not

prescribed for the

individual by the

medical staff

* * * *

* * *

------------------------------------------------------------------------

High Category

------------------------------------------------------------------------

* * * *

* * *

B. Forfeit earned

statutory good time or

non-vested good conduct

time up to 50% or up to

60 days, whichever is

less, and/or terminate

or disallow extra good

time (an extra good time

or good conduct time

sanction may not be

suspended).

* * * *

* * *

220............... Demonstrating,

practicing, or using

martial arts, boxing

(except for use of a

punching bag),

wrestling, or other

forms of physical

encounter, or military

exercises or drill

(except for drill

authorized and conducted

by staff)

[[Page 50790]]

* * * *

* * *

------------------------------------------------------------------------

Moderate Category

------------------------------------------------------------------------

* * * *

* * *

B. Forfeit earned

statutory good time or

non-vested good conduct

time up to 25% or up to

30 days, whichever is

less, and/or terminate

or disallow extra good

time (an extra good time

or good conduct time

sanction may not be

suspended).

* * * *

* * *

------------------------------------------------------------------------

Table 4.--Sanctions

------------------------------------------------------------------------

-------------------------------------------------------------------------

1. * * *

* * * *

* * *

(b) Forfeit earned statutory good time, non-vested good conduct

time, and/or terminate or disallow extra good time. The statutory good

time available for forfeiture is limited to an amount computed by

multiplying the number of months served at the time of the offense for

which forfeiture action is taken, by the applicable monthly rate

specified in 18 U.S.C. 4161 (less any previous forfeiture or

withholding outstanding). The amount of good conduct time (GCT)

available for forfeiture is limited to the total number of days in the

``non-vested'' status at the time of the misconduct (less any previous

forfeiture). A forfeiture of good conduct time sanction may not be

suspended. Disallowance of extra good time is limited to the extra good

time for the calendar month in which the violation occurs. It may not

be withheld or restored. The sanction of termination or disallowance of

extra good time may not be suspended. Forfeited good conduct time will

not be restored. Authority to restore forfeited statutory good time is

delegated to the Warden. This decision may not be delegated lower than

the Associate Warden level. Limitations on this sanction and

eligibility for restoration are based on the severity scale. (See Table

6)

(b.1) Disallowance of good conduct time. I. An inmate sentenced

under the Sentencing Reform Act provisions of the Comprehensive Crime

Control Act (includes the inmate who committed his or her crime on or

after November 1, 1987) may not receive statutory good time, but is

eligible to receive 54 days good conduct time credit each year (18

U.S.C. 3624(b)). Once awarded, the credit is vested, and may not be

disallowed. However, for crimes committed on or after September 13,

1994 and prior to April 26, 1996, credit toward an inmate's service of

sentence shall not be vested unless the inmate has earned or is making

satisfactory progress toward a high school diploma or an equivalent

degree, or has been exempted from participation because of a learning

disability. For crimes committed on or after April 26, 1996, credit

toward an inmate's service of sentence shall vest on the date the

inmate is released from custody. Once disallowed, the credit may not be

restored, except by immediate review or appeal action as indicated

below. Prior to this award being made, the credit may be disallowed for

an inmate found to have committed a prohibited act. A sanction of

disallowance of good conduct time may not be suspended. Only the DHO

can take action to disallow good conduct time. The DHO shall consider

the severity of the prohibited act and the suggested disallowance

guidelines in making a determination to disallow good conduct time. A

decision to go above the guideline range is warranted for a greatly

aggravated offense or where there is a repetitive violation of the same

prohibited act that occurs within a relatively short time frame (e.g.,

within 18 months for the same greatest severity prohibited act, within

12 months for the same high severity prohibited act, and within 6

months for the same moderate severity prohibited act). A decision to go

below the guidelines is warranted for strong mitigating factors. Any

decision outside the suggested disallowance guidelines is to be

documented and justified in the DHO report.

II. VCCLEA inmates rated as violent and PLRA inmates will ordinarily

be disallowed good conduct time for each prohibited act they are found

to have committed at a DHO hearing, consistent with the following:

(1) Greatest category offenses: A minimum of 40 days (or, if

less than 54 days are available for the prorated period, a minimum

of 75% of available good conduct time) for each act committed;

(2) High category offenses: A minimum of 27 days (or, if less

than 54 days are available for the prorated period, a minimum of

50% of available good conduct time) for each act committed;

(3) Moderate category offenses: A minimum of 13 days (or, if

less than 54 days are available for the prorated period, a minimum

of 25% of available good conduct time) for each act committed if

the inmate has committed two or more moderate category offenses

during the current anniversary period;

(4) Low moderate category offenses: A minimum of 6 days (or, if

less than 54 days are available for the prorated period, a minimum

of 12.5% of available good conduct time) for each act committed if

the inmate has committed three or more low moderate category

offenses during the current anniversary period.

However, the DHO may, after careful consideration of mitigating factors

(seriousness of the offense, the inmate's past disciplinary record, the

lack of available good conduct time, etc.) choose to impose a lesser

sanction, or even disallow no GCT for moderate and low moderate

prohibited acts by VCCLEA inmates rated as violent or by PLRA inmates.

The DHO must thoroughly detail the rationale for choosing to disallow

less than 13 days or 6 days respectively. This will be documented in

Section VII of the DHO report. Disallowances of amounts greater than 13

days or 6 days respectively will occur with repetitive offenses

consistent with the guidelines in this (b.1).

III. The decision of the DHO is final and is subject only to review

by the Warden to ensure conformity with the provisions of the

disciplinary policy and by inmate appeal through the administrative

remedy program. The DHO is to ensure that the inmate is notified that

any appeal of a disallowance of good conduct time must be made within

the time frames established in the Bureau's rule on administrative

remedy procedures.

IV. Except for VCCLEA inmates rated as violent or PLRA inmates,

Sanction B.1 may be imposed on the Low Moderate category only where the

inmate has committed the same low moderate prohibited act more than one

time within a six-month period.

* * * *

* * *

------------------------------------------------------------------------

[[Page 50791]]

TABLE 5.--Sanctions for Repetition of Prohibited Acts Within Same Category

----------------------------------------------------------------------------------------------------------------

Prior offense (same

Category code) within time Frequency of repeated Sanction permitted

period offense

----------------------------------------------------------------------------------------------------------------

Low Moderate Sanctions, plus.

* * * * * *

*

2. Forfeit earned SGT or non-vested GCT up

to 10% or up to 15 days, whichever is

less, and/or terminate or disallow extra

good time (EGT) (an EGT sanction may not

be suspended).

* * * * * *

*

Moderate Sanctions (A, C, E-N), plus.

* * * * * *

*

2. Forfeit earned SGT or non-vested GCT up

to 37\1/2\% or up to 45 days, whichever is

less, and/or terminate or disallow EGT (an

EGT sanction may not be suspended).

* * * * * *

*

High Sanctions (A, C, E-M), plus.

* * * * * *

*

2. Forfeit earned SGT or non-vested GCT up

to 75% or up to 90 days, whichever is

less, and/or terminate or disallow EGT (an

EGT sanction may not be suspended).

* * * * * *

*

----------------------------------------------------------------------------------------------------------------

Table 6.--Sanctions by Severity of Prohibited Act, With Eligibility for Restoration of Forfeited and Withheld Statutory Good Time

--------------------------------------------------------------------------------------------------------------------------------------------------------

Elig. restoration Elig. restoration

Severity of act Sanctions Max. amt. forf. GT Max. amt W/hd SGT forf. SGT W/hd/SGT Max. dis seg

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Note: (1) In Table 6 headings, ``GT'' represents both good conduct and statutory good time and ``SGT'' represents statutory good time. Forfeited good

conduct time is not eligible for restoration. Restoration of statutory good time will be approved at the time of initial eligibility only when the

inmate has shown a period of time with improved good behavior. When the Warden or his delegated representative denies restoration of forfeited or

withheld statutory good time, the unit team shall notify the inmate of the reasons for denial. The unit team shall establish a new eligibility date,

not to exceed six months from the date of denial.

(2) An inmate with an approaching parole effective date, or an approaching mandatory release or expiration date who has forfeited good time may be

placed in a Community Treatment Center only if that inmate is otherwise eligible under Bureau policy, and if there exists a legitimate documented need

for such placement. The length of stay at the Community Treatment Center is to be held to the time necessary to establish residence and employment.

3. In Sec. 541.14, paragraph (a) is amended by revising the last

sentence to read as follows:

Sec. 541.14 Incident report and investigation.

(a) Incident report. * * * Only the DHO may make a final

disposition on a prohibited act in the Greatest Severity Category or on

a prohibited act in the High Category (when the High Category

prohibited act has been committed by a VCCLEA inmate rated as violent

or by a PLRA inmate).

* * * * *

[FR Doc. 97-25522 Filed 9-25-97; 8:45 am]

BILLING CODE 4410-05-P