Submit an essay of not less then 100 words to the instructor.
The reporting employee has completed their duty by submitting a completed Rules Violation Report (CDC 115) to the reviewing supervisor. Now what does the reviewing supervisor do with the report.
Reviewing Supervisor's Responsibilities:
The report must be given a log number. Different institutions get log numbers from different areas, so just follow the process established by your institution. Next, the reviewer must send the Rules Violation Report to clinical staff to they can determine if the inmate is a Mental Health Participant. Clinical staff will complete the assessment and return the CDC 115 to the appropriate unit.
If Clinical staff determined that the inmate is an Enhanced Outpatient Program inmate, then a staff assistant must be assigned. Otherwise, staff assistants will be assigned on a case by case basis. Although the CCRS permits an inmate to refuse staff assistance, it is not logical to allow an inmate to refuse assistance after we determined the inmate is incapable of meaningful participation at the hearing. It remains the responsibility of the hearing officer to determine the need for staff assistance.
Having received the completed CDC 115 and the Clinical Staff assessment, the reviewing supervisor is now ready to process the RVR.
Let's go through a checklist to ensure the CDC 115 is ready.
CDC Number: Is it accurate? If the number is not accurate, it's not too late to correct it. We can either retype the CDC 115, or we can just line out the wrong number and write in the right number. Unless time restraints are a concern, it is recommended that we retype the CDC 115 as the pre-hearing copy has not been issued.
Name: is it correctly spelled, last name, first? Again, if the name is misspelled and time constraints are not an issue, it is recommended that you retype the report, otherwise we can just line out the name and write in the corrected name.
release date: Is it accurate? The accurate release date is the date listed in the inmate's central file.
Institution: is the entry correct?
HOUSING: Does the 115 list housing at the time of the offense?
location: Is the location as specific as possible?
DATE and TIME: Does the disciplinary date and time reflect the date and time of discovery?
CCR NUMBER: Does the cited CCR Number and subsection match the specific act and the circumstances of the offense?
SPECIFIC ACT: Does the offense given as the specific act, qualify as a description of specific misconduct? Does the specific act or offense, use the same language given in CCR 3314, 3315 and 3323? Does the statement of circumstances support the specific act or offense?
Statement Of Circumstances:
TIME AND DATE: Does the statement of circumstances give specific information about the time and date of the offense?
DATE OF DISCOVERY: If the date of discovery is not the offense date, does the statement of circumstances explain the difference?
LOCATION: Does the statement of circumstances accurately describe the location?
NAMES: Are inmates named in the statement of circumstances properly identified?
EVIDENCE: Is there a complete description of the evidence?
ASSIGNMENT: Does the statement of circumstances describe the assignment of the staff member making the report?
Does the statement of circumstances include any response from the inmate? Does the inmate response disclose only non-confidential information?
DISPOSAL OF CONTRABAND:
Does the statement of circumstances, accurately give the disposition of any contraband held as evidence? The contraband is to be held pending the hearing.
INJURIES: If the offense involves injuries, do the reports describe the nature and extent of any injuries to participants?
If the offense involves property, does the statement of circumstances give the value of this property?
If confidential information is used, does the statement of circumstances state confidential information was used, identify the date and author of the confidential report, explain why the informants are considered reliable and accurately disclose the non-confidential portion of this information?
If prior disciplinary offenses for this same or similar offenses alter the classification of the offense, do the statement of circumstances list any prior disciplinaries? Prior history should not be included in the body of the report, unless the charged rule violation is for recurring failure to meet work or program expectations, or Pattern of administrative violations, or Grooming violations.
If it is performance related, does the statement of circumstances describe the assigned duties or conditions of employment for this assignment?
If it is performance related, does the statement of circumstances state whether the supervisor requests unassignment of the inmate?
CORRECTIONS: If the disciplinary report has been corrected, do these corrections comply with departmental procedures?
Having gone over the report and ensuring it meets departmental standards, the reviewing supervisor is now ready to sign it and forward it to be classified.
Classifying The Report:
Now it is time to determine whether the report should be classified as Administrative or Serious. If serious, to what extent is credit forfeiture an issue in the hearing.
To classify the report, the classifier needs to look at the specific act. If the specific act is listed in CCR 3323, the classifier goes to that wording and simply classifies it according to the schedule. Example: The reporting employee is charging the inmate with Mutual Combat not involving injuries where the aggressor cannot be identified. The classifier looks at the CCRS section 3323 and finds this language under a Division "D" offense. The classifier writes this in has their name typed and signs the report. If the act is not listed in the credit forfeiture schedule, then the classifier looks at CCR section 3315 and finds that language, otherwise it probably is an Administrative violation and the classifier simply marks the report as administrative. No credit forfeiture can be assessed.
Issuing The Rules Violation Report:
Any staff member can issue the pre-hearing copy of the CDC 115 to the inmate. If the hearing officer must issue the pre-hearing copy of the CDC 115 to the inmate, it will not disqualify that person from participating in the hearing. The person issuing the report simply finds the inmate, signs and dates in the appropriate boxes and issues the inmate the back copy. If the charge is one which was classified as serious, the inmate is also given a copy of the CDC 115-A. Here the inmate may make a request for a Staff Assistant or Investigative Employee. It is the responsibility of the Hearing Official to determine whether or not one will be assigned.
Determining When to Assign Staff Assistance or Investigative Employee.
Assigning The Investigative Employee
There are restrictions on assigning an IE. The IE cannot be someone who witnessed the offense or had a role in the disciplinary investigation leading to the charge. Equally, the IE cannot be the prospective SHO for that disciplinary (CCR 3315(d)(1)(B)). The IE should be an experienced staff member with training in completing a fair and impartial investigation. Unforeseen delays in completing the IE do not extend time constraints. The IE report should be completed as quickly as possible. While CDC does not prescribe time limits, a reasonable expectation is that it will be completed within four days of assignment.
The inmate does have the right to reject the first staff member assigned as IE. The inmate is not obligated to explain or justify this rejection. If the first staff member assigned as IE is rejected, another staff member will be assigned and this staff member will complete the report (CCR 3315(d)(1)(C)). While the inmate may reject this second staff member, this rejection must be based upon a compelling reason. While not defined by the CCR, a compelling reason would be some circumstance or problem that disqualifies this staff member from serving as IE for this offense. Staff members are disqualified from serving as IE when they witnessed the offense or otherwise had some role in the investigation leading to the disciplinary. Unless the inmate can show the second staff member is disqualified from serving as the IE for that offense, the inmate's objection can be rejected and the assigned staff member will complete the IE report.
Criteria For Ie Assignment:
An IE must be assigned under one of three circumstances (CCR 3315(d)(1)(A)):
The complexity of the issues requires further investigation: The issues are complex when there is no clear, simple picture of the offense. As a guideline, if it takes several readings of a disciplinary report to understand the issues, it is complex. Because this is based upon the complexity of the offense rather than the wishes of the inmate, this applies whether the inmate requests or waives IE assignment. If it does not appear complex to the SHO but overwhelming to the inmate, assignment of a Staff Assistant rather than an IE should be considered.
The housing status makes it unlikely the charged inmate can collect and present the evidence necessary for an adequate presentation of a defense: Due process requires that the accused have a fair chance at assembling his or her defense. If the inmate cannot put together a defense because he or she no longer has access to the crime scene or cannot interview possible witnesses, an IE should be assigned. However, this does not alter the duties of the IE. The IE works for the SHO, not the inmate. As always, the investigation must be a fair and impartial review of all the evidence. It should not be limited to the issues raised by the inmate. If change in housing is the only reason for IE assignment and the inmate waives assignment, an IE is not necessary. Automatic IE assignment for an inmate housed in Ad Seg or a SHU is not required. When an inmate has been moved to Ad Seg or SHU, this is usually the case because the accused no longer has access to witnesses or the charge is complex. However, if the offense happens in Ad Seg or SHU, the accused probably has access. Even if it happened in a different area, if the inmate waives IE and the issues are not complex, assignment is not necessary.
A determination has been made that additional information is necessary for a fair hearing even if the inmate has waived assignment: The SHO is obligated to take any and all necessary measures to ensure a fair and impartial review of all the evidence. If information is missing or the evidence is not clear, a fair and impartial hearing requires that the missing information be found and clarity brought to the evidence picture. For the SHO, this means assigning an IE. This obligation remains with or without the cooperation or consent of the inmate. This is because a fair and impartial hearing cannot be held without a review of all the evidence and, if information is missing or incomplete, it must be found with or without the inmate's cooperation or consent. The absence of an essential witness is one of the more common reasons additional information is needed. For example, an inmate witness has been transferred to another institution or is housed within a different facility within the institution. The IE can interview the witness by phone or an IE can be assigned at that institution or facility (CCR 3320 (i)). The witness may not be at another institution. The witness may be in a different part of the institution or there may be security problems with bringing the witness into the hearing. For example, both the accused and the witness may be housed in an Administrative Segregation Unit where bringing the two inmates into the same room may threaten security. The IE can interview the witness so the testimony is available to the hearing without compromising security.
Need for assignment of an IE is first evaluated after the disciplinary has been classified and prior to serving the preliminary copy. If an IE is assigned, the name of the assigned IE and the reason for assignment is listed on the form. If an IE is not assigned, the preliminary copy should include both a review of the assignment criteria and the conclusion that an IE is not required. CDC regulations require completion of this evaluation by the CDO or designee (CCR 3315(d)(1)(A)).
In the absence of an institutional policy on the staff member assigned for this review (that is, the designee), it is recommended that the staff member classifying the disciplinary also review any need for IE assignment. When the inmate is served with the preliminary copy of the disciplinary report and without regard to the staff decision on IE assignment, the inmate should be given the opportunity to review and sign the form either requesting or waiving IE assignment. In the hearing, the SHO will reevaluate need for IE assignment.
The Staff Assistant:
Our criminal justice system is based upon an adversarial model of justice. An adversarial model means two attorneys face off in the courtroom, each trying to present the most favorable picture of their side of the story. The theory is that this system guarantees that each side is presented in the best possible light so any decision will be fair. Many staff members completely misunderstand the role of the Staff Assistant (SA) by viewing it in terms of this adversarial model and seeing the SA as an inmate advocate. This is not correct (CCR 3318(b)(1)(C)). CDC uses a non-adversarial rather than an adversarial model of justice. There is no advocate for either prosecution or defense. Everyone in the hearing, with the possible exception of the inmate, is dedicated to a fair and impartial review of all the evidence. While the SA must, upon request, keep some information confidential that was disclosed by the inmate, the SA is committed to ensuring a fair and open disclosure of all evidence. Unlike the defense attorney, the SA does not assist the inmate in slanting the evidence in the defendant's favor nor does the SA give advice on the best defense. The SA is limited to explaining the hearing procedures, charge and evidence to the inmate. In the hearing, the SA representation of the inmate's position is very limited. The SA should make sure the inmate's position is understood (CCR 3318(b)(1)(B)). Once this position is understood, the job is done. The SA is present at the disciplinary hearing only in case the inmate requires an additional explanation or cannot explain his defense.
The SA must meet with the inmate a minimum of 24 hours prior to the hearing. While CDC regulations do not specifically forbid accepting a waiver of this preparation period, it is not recommended. The inmate is assigned an SA because the inmate does not fully grasp hearing procedures. It is questionable whether someone who does not fully grasp hearing procedures can intelligibly waive a portion of those procedures without having time to consider this decision. At this meeting, the SA is required to cover each of these points with the inmate (CCR 3318(b)(1)):
Explain both hearing procedures and the inmate's rights during that hearing. This explanation must include advising the inmate that all information developed during the disciplinary process, other than confidential disclosures between the SA and the inmate, can be used in a court of law against the inmate.
Assist the inmate in understanding the disciplinary charge and written reports so the inmate can formulate his or her own response. As a recommended procedure, read the disciplinary reports to the inmate. Explain the pending charge and the evidence required to prove this charge.
The SA must refrain from recommending a defense to the inmate or attempting to act as legal counsel to the inmate. If requested by the inmate, the SA can assist the inmate in understanding his or her own defense. This means helping the inmate understand what evidence is required to prove his or her position as well as helping the inmate organize his or her defense into an order acceptable to the hearing. The SA should not advise the inmate on how that evidence should be shaped or the best defense strategy.
The SA must advise the inmate that the information disclosed by the inmate to the SA can remain confidential under specific conditions: First, the inmate must request confidentiality prior to disclosure. For example, the SA advises the inmate on confidentiality. The inmate admits guilt. After this admission, the inmate has a change of heart, regrets admitting guilt and requests this information remain confidential. The SA is not obligated to honor this request because the inmate did not request confidentiality prior to admitting guilt. Second, confidentiality extends only to incriminating information about the pending disciplinary offense (CCR 3318(b)(2)(A)). Confidentiality does not extend to any incriminating admissions of any misconduct beyond that under review in the pending disciplinary hearing. For example, the inmate is charged with Battery with a deadly weapon on another inmate. During the interview with the SA and after requesting confidentiality, the inmate admits manufacturing the weapon used in the attack as well as stabbing another inmate several weeks earlier. The weapon manufacture relates to the current offense so this cannot be disclosed. The second stabbing happened several weeks before the current offense and has no relationship to the current offense. This information can be disclosed and, in fact, disciplinary action can be based upon this admission. Third, confidentiality does not extend to disclosure of plans for future misconduct (CCR 3318(b)(3)). If the inmate discloses such plans, the SA should take whatever steps are necessary to prevent the contemplated action or protect possible victims. For example, in discussing the current disciplinary offense with the inmate, the SA concludes the inmate contemplates stabbing another inmate sometime in the immediate future. Under these circumstances, the SA must report his or her suspicions and take any necessary steps to protect the proposed victim.
In the disciplinary hearing, the SA will ensure the inmate's position is fairly and accurately presented. If necessary, the SA may present the inmate's position as well as assist the inmate in understanding any decisions reached in the hearing.
Under normal circumstances, the SA does not submit a written report. In the hearing, the SHO will review and confirm that the SA has met each of his or her obligations.
SHO REVIEW OF SA ASSIGNMENT
If an SA was assigned, due process requires the SHO confirm that all obligations have been met. In the hearing, review each of the duties of the SA and confirm: that the SA is present at the hearing; met with the inmate more than 24 hours in advance of the hearing; explained the hearing procedures, disciplinary charge and written reports; and that the inmate understands he or she can request a confidential discussion with the SA concerning the disciplinary offense. Ask the inmate if he or she is prepared to begin the hearing. As always, a summary of this review must be included in the hearing summary.
If the inmate claims that he or she is not prepared to begin, determine whether every reasonable effort has been made to prepare the inmate for the hearing. If not, postpone the hearing long enough for more preparation. If a reasonable effort has been made and delay is unnecessary, the hearing summary should summarize the inmate's objections along with the reason these objections were not sustained.
CRITERIA For Staff Assistant:
These are the four reasons for assigning an SA (CCR 3315(d)(2)):
The inmate is illiterate. The inmate who cannot read or write well enough to understand the disciplinary reports cannot understand the charge or the evidence supporting this charge. If satisfied the inmate cannot read or write at all, the decision is fairly simple: assign an SA. When the inmate has limited reading or writing skills, the decision is more difficult. When possible, inmate's are tested and given a grade level for their reading level. Check the grade level. If the grade level is not available for the hearing and the inmate claims limited ability, ask the inmate to read a portion of the disciplinary report to get some idea how well the inmate can read. Weigh the inmate's limited literacy against the complexity of the charge and evidence. If the disciplinary is fairly simple, a very limited reading ability may be enough. On the other hand, a complex disciplinary with a felony charge may require assignment of an SA for an inmate with a higher level of literacy.
The inmate is non-English speaking. if the inmate requires the assistance of an interpreter, assign an SA. This SA will serve in the role of interpreter. The difference between a staff interpreter and a SA assigned to interpret is simple: the SA must meet with the inmate more than 24 hours prior to the hearing and, upon request, keep any conversation with the inmate concerning the offense confidential. While these differences are simple, they are very important.
When the inmate has no grasp of English, the decision on assigning an SA is fairly simple. When the inmate has limited English, the decision is more complicated. The more complex the charge and evidence against the inmate, the greater the level of English proficiency required for a fair hearing. Another consideration is that the inmate may understand English while being unable to express him or herself sufficiently to provide a defense. If the inmate has sufficient English proficiency to understand the charge and present his or her own defense, an SA is not required. As a general rule, if in doubt, talk with the inmate about the offense, ask that the inmate read a portion of the disciplinary report and, if it remains uncertain whether the inmate understands, assign the SA.
The presence of an SHO fluent in the native language of the inmate does not alter this requirement for assignment of an SA. This is because the SHO cannot serve as the SA by meeting with the inmate more than 24 hours in advance of the hearing or offer confidentiality upon request.
The complexity of the issues are such that assistance is necessary so the inmate comprehends the nature of the charge or the disciplinary process. complexity can require SA assignment. Weigh the inmate's abilities against the charge and evidence. If the charge is fairly simple, the fact that the inmate is also fairly simple may not be an issue. However, when the charge becomes complex enough that his fairly simple abilities are exceeded, assignment of a SA becomes necessary. On the other hand, an inmate who functions on a more sophisticated level of understanding may not require SA assignment for even a complex disciplinary.
Inmates suffering from a mental health disorder or limited abilities are a special concern. However, although there is a requirement for assignment of a SA for every inmate designated as EOP, there is no requirement that a Staff Assistant be assigned for every inmate classified as a CCCMS, Cat J or Cat K. If the inmate can understand the issues in spite of any mental health problems, assignment is not necessary. On the other hand, if inmate does not understand the issues, an SA must be assigned. It does not matter why the inmate does not understand whether it is because the issues are very complex, the inmate is very simple in abilities or so limited by a mental health disorder that he cannot perceive the issues with reasonable accuracy.
The nature of the inmate's need for assistance requires a confidential relationship. This is a reaffirmation of the essential difference between assistance from any staff member and assistance from an SA: if requested by the inmate prior to the discussion, the SA cannot divulge incriminating admissions by the inmate. This gives the inmate access to assistance without risk of self-incrimination. This is a due process issue. The inmate should be able to prepare a defense without risking self-incrimination.
REVIEWING NEED FOR A STAFF ASSISTANT
Need for assigning an SA is checked twice. The first time is after the disciplinary is classified and prior to service of the inmate's preliminary copy. If assigned, the name of the assigned SA and the reason for assignment is listed on the form. If not assigned, the preliminary copy should include a review of the assignment criteria and the conclusion that an SA is not required. CDC regulations require completion of this evaluation by the CDO or designee (CCR 3315(d)(2)). In the absence of an institutional policy on which staff member is assigned as designee, the staff member classifying the disciplinary is recommended. When the inmate is served with the preliminary copy of the disciplinary report, the inmate must be given the opportunity to review and sign the form either requesting or waiving SA assignment. Need for assigning an SA is reevaluated in the hearing.
The CCR does not explicitly require reevaluation of need for SA assignment by the SHO in the hearing. It is a matter of due process, not regulation. The SHO is responsible for ensuring a fair and impartial hearing. If the inmate requires a SA and one were not assigned, the hearing cannot be fair and impartial. For this reason, the SHO must always review any need for SA assignment. Ask the inmate if he or she is literate. If there is some question how well the inmate can read, ask the inmate to read a portion of the disciplinary report. If there is reason to doubt the inmate's comprehension of the disciplinary process or grasp of English, ask the inmate about it in the hearing and include the answers in the hearing summary. Always ask the inmate whether he or she feels that he or she can present his or her own defense and document this answer in the hearing summary.
If the inmate requests assignment of an SA and this request is denied, note both the request and denial:
If needed, an SA should be assigned with or without consent of the inmate. This is because a fair and impartial hearing requires assignment of an SA and no one can waive the right to a fair and impartial hearing. While the inmate cannot request a particular staff member, the inmate can reject the first staff member assigned. The inmate is not required to justify or otherwise explain this rejection. A second staff member will be assigned. If the inmate objects to the second staff member, the inmate is required to give a reason. If the reason is compelling, another staff member should be assigned. If the reason is not compelling, the SHO must decide on the best way to ensure a fair and impartial hearing. This can mean rejecting the inmate's objections and continuing with the assigned staff member as SA. It could also mean assigning a third staff member. If the inmate refuses to cooperate with the SA, simply note this in the hearing summary and continue with the hearing.