[Federal Register Volume 62, Number 187 (Friday, September 26, 1997)]
[Rules and Regulations]
[Pages 50787-50791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25522]
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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.
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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
------------------------------------------------------------------------
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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]
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