[Federal Register Volume 59, Number 224 (Tuesday, November 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28829]


[[Page Unknown]]

[Federal Register: November 22, 1994]


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Part IX





Department of Justice





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Bureau of Prisons



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28 CFR Part 551




Pretrial Inmates; Final Rule
DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 551

[BOP-1001-F]
RIN 1120-AA00

 
Pretrial Inmates

AGENCY: Bureau of Prisons, Justice.

ACTION: Final rule.

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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;
    (c) Photographing and fingerprinting;
    (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.
    (c) A pretrial inmate is expected to attend these reviews. If the 
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.
    (c) Except by order of the court, a pretrial inmate may not be 
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.
    (c) In event of serious illness or death of a pretrial inmate, 
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.
    (c) Staff shall make recreation equipment available to the pretrial 
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.
    (c) Staff shall allow the pretrial inmate, upon the inmate's 
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.
    (c) Staff may supply the pretrial inmate with clothing for court 
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