[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Rules and Regulations]
[Pages 66226-66230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21486]


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DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 541

[Docket No. BOP-1172-F]
RIN 1120-AB72


Inmate Discipline Program: New Prohibited Act Code for Pressuring 
Inmates for Legal Documents.

AGENCY: Bureau of Prisons, Department of Justice.

ACTION: Final rule.

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SUMMARY: In this document, the Bureau of Prisons (Bureau) adds a new 
code to the list of prohibited act codes in the inmate discipline 
regulations which will clarify that the Bureau may discipline inmates 
for pressuring or otherwise intimidating other inmates into producing 
copies of their own legal documents, such as pre-sentence reports 
(PSRs), or statement of reasons (SORs).

DATES: This rule is effective November 18, 2020.

FOR FURTHER INFORMATION CONTACT: Sarah N. Qureshi, Rules Unit, Office 
of

[[Page 66227]]

General Counsel, Bureau of Prisons, phone (202) 307-2105.

SUPPLEMENTARY INFORMATION: In this document, the Bureau adds a new 
prohibited act code, 231, to Table 1--Prohibited Acts and Available 
Sanctions in the inmate discipline regulations at 28 CFR 541.3, which 
will clarify that inmates may be disciplined for pressuring or 
otherwise intimidating other inmates into producing copies of their own 
legal documents, such as pre-sentence reports (PSRs), statement of 
reasons (SORs), or other such documents.
    The Bureau has found that inmates, or inmate groups, frequently 
pressure other inmates for copies of their PSRs, SORs, or other similar 
sentencing documents from criminal judgments, to learn if they are 
informants, gang members, have financial resources, to find others 
involved in offenses, to prove affiliations, etc. Some inmates who 
produced, or refused to produce, the documents were threatened, 
assaulted, and/or sought protective custody, all of which jeopardized 
the Bureau's ability to safely manage its institutions. The problem of 
threats and assaults on inmates arising from possession of an inmate's 
presentence investigative reports, statements of reasons, or other 
similar sentencing documents from criminal judgments has been 
acknowledged by the Administrative Office of U.S. Courts and in case 
law. See, e.g., United States v. Antonelli, 371 F.3d 360, 361 (7th Cir. 
2004); Harrison v. Lappin, 510 F.Supp.2d 153 (DC Cir. 2007); Delgado v. 
Bureau of Prisons, 2007 WL 2471573 (E.D.Tex.); Martinez v. Bureau of 
Prisons, 444 F.3d 620, 370 U.S.App.D.C. 275 (DC Cir. 2006); Sample v. 
Watts, 100 Fed.Appx. 317, 2004 WL 1255359 (C.A.5 (Tex.).
    The Bureau of Prisons (Bureau) published a proposed rule on this 
subject on November 19, 2019 (84 FR 63830). The comment period closed 
on January 21, 2020. We received fifteen comments during the comment 
period. While several were in support of the general premise of the 
proposed rule, commenters raised similar concerns and questions in 
their comments, which we address below.
    The rule limits inmates' right to meaningful access to courts. 
Fourteen of the fifteen commenters raised a version of this issue: The 
prohibited act code, as proposed, appears to curtail the ability of 
inmates to assist other inmates with preparation of legal documents, as 
allowed by 28 CFR part 543, specifically Sec. Sec.  543.10 and 543.11.
    As we stated in the proposed rule, the Bureau has found that 
inmates, or inmate groups, pressure other inmates for copies of their 
PSRs, SORs, or other similar sentencing documents from criminal 
judgments, to learn if they are informants, gang members, have 
financial resources, or to learn of others involved in the offense, 
etc. Some inmates who produced, or refused to produce, the documents 
were threatened, assaulted, and/or sought protective custody, all of 
which jeopardized the Bureau's ability to effectively and safely manage 
its institutions. The defense bar, federal sentencing courts, and the 
Bureau identified this issue as one of concern that required attention/
action.
    In Dept. of Justice v. Julian, 486 U.S. 1 (1988), the U.S. Supreme 
Court decided the government was obligated to provide inmates access to 
their own pre-sentence investigation reports under the Freedom of 
Information Act (FOIA). By continuing to provide inmates reasonable 
access to review their PSRs, SORs, or other similar sentencing 
documents from criminal judgments at the facilities at which they are 
located, the Bureau's obligation under the FOIA is satisfied. The 
Julian decision did not mandate that inmates be permitted to obtain and 
possess copies of these documents contrary to legitimate penological 
interests, i.e., the safety and security of Bureau institutions, 
inmates, staff, and the public.
    The Bureau's regulation in volume 28 of the Code of Federal 
Regulations, section 543.10, indicates that the Bureau affords inmates 
``reasonable access to legal materials'' in order to prepare legal 
documents. Section 543.11(d)(1) authorizes inmates to receive legal 
materials from outside the institution, including the inmate's 
``pleadings and documents (such as a pre-sentence report) that have 
been filed in court or with another judicial or administrative body, 
drafts of pleadings to be submitted by the inmate to a court or with 
other judicial or administrative body which contain the inmate's name 
and/or case caption prominently displayed on the first page, documents 
pertaining to an inmate's administrative case.'' Subparagraph (d)(2) 
further allows inmates 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.''
    Notably, however, commenters do not mention the limitations of 
Sec.  543.11(f)(2) in existence prior to the proposed rule, which 
provide that an assisting inmate may possess another inmate's legal 
materials, while assisting the other inmate, in the institution's main 
law library or in other locations designated by the Warden, but may not 
remove another inmate's legal materials, including copies, from the 
designated location. The new prohibited act does not alter or curtail 
the ability of an assisting inmate to view another inmate's legal 
materials for the purposes of assisting that inmate in an authorized 
location.
    Additionally, under Sec.  543.11(f)(2)(i), an assisting inmate is 
also permitted to make handwritten notes and drafts of pleadings, and 
even to remove those notes from the authorized location, as long as the 
notes do not contain a case caption, document title, or the name of any 
inmate.
    Finally, Sec.  543.11(f)(4) indicates that limitations on inmate 
assistance to other inmates may be imposed in the interest of 
institution security, good order, or discipline. This rulemaking is a 
practical limitation for reasons of security on the scope of inmate 
assistance to other inmates. While this rule does not prohibit such 
inmate assistance, inmates may find that firmer adherence to the letter 
of the regulations has become necessary due to greater attention to 
incidences of inmate harassment and intimidation.
    However, because commenters found the language of the prohibited 
act code to be unclear and overbroad, the Bureau now alters code 231 as 
set forth in the rule to provide that the conduct to be prohibited is, 
in fact, unauthorized conduct, not the authorized inmate assistance 
rendered by one inmate to another inmate in a location authorized by 
the Warden and performed as required in 28 CFR part 542.
    Staff awareness and/or abuses of the prohibited act code sanctions. 
Two commenters asked how staff would be made aware of prohibited act 
conduct and what action they would take upon being made aware of it. 
Another was concerned that staff would take ``discipline as physical 
punishment'' and warned that ``it must be made very clear to any guard 
or authority figure in a prison what kind of discipline the inmate is 
to receive as well as clear justification for it.'' Three more 
commenters expressed concerns regarding the potential for staff to 
impose immediate and direct discipline for perceived violations of this 
prohibited act code.
    To respond to these concerns, we first suggest to these and any 
other inmates with grievances relating to staff abuse to locate 
appropriate staff members or medical professionals in their facilities 
and report such behavior, and also to make use of the Administrative 
Remedy

[[Page 66228]]

Procedures process in 28 CFR part 542. Inmates may electronically send 
requests to different departments within the institution and use the 
Request to Staff service to report misconduct directly to the Office of 
Inspector General (OIG). These emails are anonymous and not retained or 
traceable in the inmate email system.
    However, the Bureau is committed to ensuring the safety and 
security of all inmates in our population, our staff, and the public. 
Staff are trained and expected to conduct themselves professionally, 
including the humane and courteous treatment of those in our custody. 
Bureau staff are trained to stay mindful of the agency's core values of 
correctional excellence, respect and integrity. At the outset of their 
employment, staff are instructed that they must adhere to the 
principles of ethical conduct in the Basic Obligations of Public 
Service at 5 CFR 2635.101; Standards of Ethical Conduct for Employees 
of the Executive Branch at 5 CFR part 2635; the Department of Justice's 
Supplemental Ethics Regulations at 5 CFR part 3801; the criminal 
conflict of interest statutes at 18 U.S.C. 201, 202, 203, 205, 207, 
208, and 209; and the Bureau of Prisons Standards of Employee Conduct 
in Bureau of Prisons Program Statement 3420.11. The Bureau of Prisons 
provides ethics training to all new employees both when they begin 
employment and annually thereafter.
    Secondly, before any sanctions may be imposed for violation of 
prohibited acts, current regulations in 28 CFR part 541 describe the 
required process which must be undertaken, including the following:

     Issuing an incident report to the inmate describing the 
prohibited act the inmate is charged with, ordinarily within 24 hours 
of becoming aware of the inmate's involvement in the prohibited act 
conduct;
     Investigating the incident reported;
     Informing the inmate of the charges against him/her and of 
his/her rights during the process;
     Taking an inmate statement of explanation of the incident, 
including requests for witnesses or other evidence; and
     Referring the incident report to the Disciplinary Hearing 
Officer (DHO) for a hearing.
    When an incident report is referred to a DHO for a hearing, Bureau 
regulations explain that inmates again receive written notice of the 
charges against them at least 24 hours prior to the hearing unless they 
waive that requirement, and are entitled to a staff representative, to 
make a statement and present evidence on their own behalf, and to 
present witnesses with relevant information.
    After the DHO hearing, inmates will receive a written copy of the 
DHO's decision which must document whether the inmate was advised of 
his/her rights during the DHO process, what evidence the DHO relied on 
to make the decision reached, what decision was reached, that sanction 
was imposed, and the reasons for the sanctions imposed. The inmate is 
also advised that he/she may appeal the DHO's action through the 
Administrative Remedy Program (28 CFR part 542, subpart B).
    This process provides multiple checks and balances to deter or 
prevent staff abuse by allowing inmates several opportunities to speak 
on their own behalf or present evidence and witnesses. Staff must also 
carefully document their observation of prohibited acts and cannot 
immediately or directly impose sanctions upon inmates, but must instead 
refer incident reports to DHOs for hearings, in the case of 200-level 
prohibited acts, before sanctions may be imposed.
    Sanctions. Eight commenters asked for more detail regarding the 
possible sanctions that might be imposed for violation of the 
prohibited act code. The sanctions can be found in current regulations 
at 28 CFR part 541. However, we summarize them below.
    The rule adds a new prohibited act code 231, which is in the High 
Severity Level Offenses category. If an inmate is found to have 
committed a prohibited act after a properly conducted DHO hearing the 
DHO may impose a sanction as listed in 28 CFR 541.3(b), Table 1, 
Prohibited Acts and Available Sanctions. Therefore, for violation of 
new prohibited act code 231, a code in the High Severity Level 
category, a DHO may:

     Recommend parole date rescission or retardation;
     Forfeit and/or withhold 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);
     Disallow ordinarily between 25% and 50% (14-27 days) of 
good conduct time credit available for year (a good conduct time 
sanction may not be suspended);
     Impose disciplinary segregation (up to 6 months);
     Require monetary restitution;
     Impose a monetary fine;
     Revoke privileges (e.g., visiting, telephone, commissary, 
movies, recreation);
     Require a change in housing (quarters);
     Remove an inmate from a program, job and/or group 
activity; impound an inmate's personal property,
     Confiscate contraband,
     Restrict an inmate to quarters; or
     Impose extra duty.
    This prohibited act code should be moved to a greater severity 
level. Commenters suggested that the prohibited conduct described by 
this rule was sufficiently egregious to warrant upgrading its severity 
level and therefore upgrading the severity of potential sanctions that 
may be imposed for violation. Several current or former inmates 
commented regarding ``organized gangs and other predatory groups who 
formally assign members to vet individuals'' and ``use information for 
financial extortion for protection,'' indicating that the proposed 
severity level would ``have little impact and minimal deterrence'' on 
this conduct.
    While the Bureau appreciates the position of these commenters, the 
severity level determination was chosen based on the nature of the 
offense conduct. In this case, the new prohibited act code includes 
``requesting, demanding, pressuring, or otherwise intentionally 
creating a situation'' causing an inmate to produce documents for any 
unauthorized purpose to another inmate. The Greatest Severity Level 
category includes prohibited acts such as escape, killing, arson, etc., 
which are generally considered more threatening to institution safety, 
security and good order than actions including ``requesting, demanding, 
pressuring'' or ``creating a situation'' causing production of 
documents for unauthorized purposes. While the activity contemplated is 
clearly enough of an issue to warrant the creation of a High Severity 
Prohibited Act, in the correctional expertise of the Bureau of Prisons, 
it does not rise to the level necessary for inclusion in the Greatest 
Severity Level Category.
    The intent of the severity scale at its inception was to ``ensure a 
greater consistency of use of discipline throughout the Federal Prison 
System'' and alleviate prior ``concern that the disciplinary system 
allowed for a variety of interpretation on the degree of severity of 
the prohibited act and on sanctions that could be imposed.'' (See 44 FR 
23174, April 18, 1979.) In a later final rule in 1982, the Bureau 
reflected that the inmate disciplinary procedures are ``not intended to 
be either a judicial

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process or to have the wide gradations of offenses and punishments 
available to the judiciary'' but instead that the ``purpose of the 
disciplinary process is to help inmates live in a safe and orderly 
environment.'' (See 47 FR 35920, August 17, 1982.) Therefore, the 
guiding factor when determining the severity levels of prohibited act 
codes has been ``the impact on institution security and good order.''
    In determining the severity level of the new prohibited act code 
231, the Bureau compared the impact of the prohibited conduct upon the 
safety, security and good order of the facility with that which might 
be generated from violation of codes in each Severity Level category, 
and determined that it would fit best in the High Severity Level 
offenses category in terms of seriousness of the offense and threat 
generated.
    Prohibited documents should include institutional disciplinary 
history, and prohibited conduct should include accessing law library 
resources or community resources to find information regarding other 
inmates. For similar reasons, these commenters also suggested that the 
code conduct be expanded from possession of inmate court documents to 
inmate conduct violation (institution disciplinary) history as well, 
and suggested that if inmates have need to see their paperwork for 
legal representation purposes that the paperwork be sent directly from 
court systems to Wardens, who should permit inmate viewing, but not 
possession. Inmate commenters also strongly recommended either 
disallowing or disciplining inmate access to court documents of fellow 
inmates via the inmate law library or community channels, and which 
they noted has been a way for some inmates to discover conviction 
information about fellow inmates.
    The Bureau must balance the inmate's ability to prepare, review, 
and analyze his/her own case and access courts against the security 
concerns sought to be managed by this regulation. In conducting this 
balance, the Bureau finds it necessary to permit inmates to retain the 
ability to access the inmate law library to satisfy the inmate's need 
to prepare his/her case and access courts. With regard to prohibiting 
inmate access to documents received through community channels, the 
Bureau's regulations regarding incoming publications (28 CFR part 540, 
subpart F), correspondence (Subpart B), visiting (Subpart D), and 
telephone (Subpart I), address these issues and the Bureau continues to 
adhere to these regulations.
    The Bureau holds inmates accountable for threatening and coercive 
behavior under existing provisions of the disciplinary code. New 
prohibited act code 231, however, will clarify that this specific 
behavior may result in sanctions. The defense bar, federal sentencing 
courts and the Bureau identified this issue as one of concern that 
requires heightened disciplinary attention. We therefore add the 
aforementioned code provision, with the aforementioned changes to the 
proposed rule published on November 19, 2019 (84 FR 63830), to 
underscore the severity of the conduct described.

Regulatory Analyses

Executive Orders 12866, 13563, and 13771

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined do not constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB. The economic 
effects of this regulation are limited to the Bureau's appropriated 
funds. It takes an average of 7.5 hours of staff time to process an 
incident report. One of the expected outcomes of this clarifying 
regulation is that inmates may be deterred from engaging in the 
prohibited behavior because violations are better defined. This 
expected outcome would save staff resources required to process 
incident reports. At this time, however, the Bureau cannot estimate 
precisely how many incidents will be avoided or the monetary value of 
the resulting cost/resource savings. Further, the Bureau would expect 
any anticipated savings generated by this rule to have minimal effect 
on the economy.

Executive Order 13132

    This regulation will not have substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Under Executive Order 13132, we determine 
that this regulation does not have sufficient federalism implications 
to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, under the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and 
certifies that it will not have a significant economic impact upon a 
substantial number of small entities. This regulation pertains to the 
correctional management of offenders committed to the custody of the 
Attorney General or the Director of the Bureau of Prisons, and its 
economic impact is limited to the Bureau's appropriated funds.

Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This regulation is not a major rule as defined by the Congressional 
Review Act, 5 U.S.C. 804. This regulation will not result in an annual 
effect on the economy of $100,000,000 or more; a major increase in 
costs or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

List of Subjects in 28 CFR Part 541

    Prisoners.

Michael Carvajal
Director, Federal Bureau of Prisons.
    Under rulemaking authority vested in the Attorney General in 5 
U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of 
Prisons, we amend 28 CFR part 541 as follows.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS

0
1. The authority citation for 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.

SUBPART A--GENERAL

0
2. Amend Sec.  541.3 by adding an entry 231 under ``High Severity Level 
Prohibited Acts'' in Table 1--Prohibited Acts and Available Sanctions 
in numeric order to read as follows:


Sec.  541.3  Prohibited acts and available sanctions

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            Table 1--Prohibited Acts and Available Sanctions
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                              * * * * * * *
High Severity Level Prohibited Acts
 
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231...................  Requesting, demanding, pressuring, or otherwise
                         intentionally creating a situation, which
                         causes an inmate to produce or display his/her
                         own court documents for any unauthorized
                         purpose to another inmate.
 
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[FR Doc. 2020-21486 Filed 10-16-20; 8:45 am]
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