PRISONERS SELF HELP LEGAL CLINIC
PO Box 798, Newark, New Jersey  07101
Website: www.pshlc.org

DISCIPLINARY PRACTICE
AND PROCEDURE

INTRODUCTION

There are more than 36,000 prison disciplinary proceedings annually in New Jersey's state correctional institutions.

All State prisoners involved in disciplinary proceedings in the State of New Jersey have certain disciplinary and Due  Process rights, which are enumerated in New Jersey Administrative Code (N.J.A.C.) Title 10A:4 et seq.1*  The prisoner disciplinary rules and regulations located in the N.J.A.C. 10A:4 set forth the pre-hearing process, the procedural guidelines governing the Hearing itself, the imposition of sanctions and appellate procedure. It also includes a comprehensive list of offenses, and schedule of permissible punishments.
	
Recent changes in the regulations, in particular N.J.A.C.10A:4-1.2(c), 10A:31-16.1(e), 10A:31-16.2(a) and 10A:31-21.4(b), subject state sentenced prisoners who are housed in county jails to the disciplinary regulations in this pamphlet. Also see Patrick Bryan v. DOC, 258 N.J. Super 546 (App. Div. 1992). 

Prisoners who are residents in community release programs are subject both to contract agency rules and to the Department of Corrections regulations concerning "Prohibitied Acts."
		
The following outline constitutes a description of the current disciplinary rules, regulations, procedures and rights, utilized by the Department of Corrections.  It is a comprehensive guide as to whether your disciplinary and Due Process rights have been infringed.

ORIGIN AND DEVELOPMENT

Prior to the United States Supreme Court's decision in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011 (1970), there were no constitutional safeguards protecting prisoners from arbitary and capricious punishment.

	In Kelly, the Supreme Court extended the Due Process clause of the United States Constitution, holding that before a welfare recipient could be deprived of a grant, certain procedural safeguards were due him or her.  They include: notice of the charge(s), confrontation or cross-examination 

of adverse witnesses and the right to representation by counsel before an impartial hearing officer.

These procedural safeguards were then expressly extended to include prisoners facing disciplinary proceedings by the U.S. Supreme Court's decision in Wolff v. McDonnell, 428 U.S. 539, 94 S. Ct. 2963 (1974).  Prisoners in New Jersey were also accorded extensive rights by the New Jersey Supreme Court's ruling in Avant v. Clifford, 67 N.J. 496 (1975).  The standards and procedures that are outlined here stem directly from these two decisions.

Originally, the DOC enumerated the "Disciplinary Standards" in a multi-volume set entitled "The Department of Corrections Administrative Plan Manual."  These "Standards" were revised periodically to reflect the requirements of new court decisions, new legislation and the Department's policy changes.

However, the Superior Court of New Jersey - Appellate Division extended the "Administrative Procedures Act" to include Corrections, in its decision in Department of Corrections v. McNeil, 209 N.J. Super 120, 126 (App. Div. 1986), cert. denied 104 N.J. 422 (1986).  This decision mandated that the DOC publish its regulations, and permit public comment in the New Jersey Register on newly proposed rules.

In 1986, the prisoner disciplinary rules and regulations were published under New Jersey Administrative Code (N.J.A.C) Title 10A.

The rights and procedural protections of prisoners facing disciplinary proceedings were recently "reaffirmed and reinforced" by the N.J. Supreme Court in two decisions, McDonald v. Pinchak, (A-2-94), __ N.J. __ (1995) and Jacobs v. Stephens, (A-1-94), __ N.J. __ (1995). In McDonald, the Court clarified and modified some of the DOC's disciplinary hearing practices "to further ensure that DOC properly implements both the standards announced in Avant and the DOC's own regulations." 

I.  PRE-HEARING PROCESS

A.	DUE PROCESS NOTIFICATION

To meet the requirements of the Due Process clause of the U.S. Constitution, the DOC must give prisoners notice of what conduct is prohibited and the sanctions which can be
imposed as a result of his/her violation of institutional rules and regulations.

The State Legislature, in New Jersey Statute (N.J.S.A.) Title 30:4-8.5, required the Department of Corrections to provide all prisoners with a publication containing the "rules and regulations governing the rights, privileges, duties and obligations of the prisoner population confined therein".  The statute further mandates that "no punishment may be meted out other than of the type and in the manner prescribed by such rules and regulations."  N.J.S.A. 30:4-8.4.          

One pro se prisoner recently won reversal of a hearing officer's finding of guilt involving possession of a pair of sewing scissors found in his administrative segregation cell, because there had been no prior notice that scissors were contraband in ad seg.  See Gerrard v. Stephens, N.J. App. Div. Docket No. A-2035-92T1, available upon request from the PSHLC.

This information should be provided in a booklet as part of the admission/orientation program.  Each prisoner is required to sign a form, acknowledging receipt of the "Handbook On Discipline".  A prisoner's refusal to sign the receipt form should be noted by the issuing staff member. N.J.A.C.10A:4-2.1(a).

Any and all changes in rules or regulations must be posted in housing units and other areas of the facility and incorporated into the next revision of the "Handbook on Discipline".  N.J.A.C.10A:4-2.2.

A list of Department of Corrections prohibited acts and sanctions appears in the appendix to this pamphlet.

B.  ON-THE-SPOT-CORRECTION

When a minor violation of a prohibited act occurs, the staff member witnessing the violation may prepare Form 253-I, an "On-The-Spot Disciplinary Report", in triplicate. One copy must be served upon the prisoner.  The other copies must be forwarded immediately to the Shift Supervisor.  N.J.A.C. 10A:4-7.1(a)(1)(2).

If requested by the prisoner, the Shift Supervisor must hold a conference within 24 hours of receipt of the disciplinary report. The prisoner may argue that he/she should not be disciplined and may challenge the proposed sanction. N.J.A.C. 10A:4-7.2(b).

"A prisoner may waive the right to attend his/her conference, or he/she may forfeit that right if his/her behaviour justifies removal from the conference." The Shift Supervisor must indicate on "Part Two" of Form 253-I whether the conference was held and what the results were. N.J.A.C. 10A:4-7.2 (c).

At the conclusion of the conference, the prisoner will receive a copy of the completed "On-The-Spot Disciplinary Report."  If he or she is found guilty, the remaining copy of the Report will be placed into his or her Classification File.  A prisoner's Classification File consists of his/her criminal charges, institutional disciplinary charges, institutional housing and work assignments, and any other relevant material relating to the prisoner's  incarceration. Not guilty determinations will not be placed in the prisoner's file. N.J.A.C. 10A:4-7.2(d) and 7.5(a). Information regarding the finding of guilt will not be entered onto the prisoner's progress notes or included in the reports presented to the Parole Board. N.J.A.C.10A:4-7.5(a).The following sanctions are authorized for "On-The-Spot Disciplinary Reports," N.J.A.C.10A:4-78.3(a):

		a.	Verbal reprimand;
		b.	Loss of recreation privileges for up to five days;
		c.	Up to four hours of extra duty work;
		d.	Up to four hours confinement to the tier,
			room or cell;
		e.	Loss of radio or television privileges for up to five days.

If the Shift Supervisor concurs with the "On-The-Spot Disciplinary Report" and the proposed sanction, then the sanction will be imposed within 24 hours of the conference or, the Shift Supervisor's review. N.J.A.C. 10A:4-7.6(a). If the Shift Supervisor concludes that a more severe sanction may be appropriate, the infraction will be referred for a Disciplinary Hearing. 

C.  THE DISCIPLINARY REPORT 

When a violation of a prohibited act occurs, the staff member who witnessed the incident or has probable cause to believe that a prohibited act has occurred, may prepare a Disciplinary Report and forward it to a correctional supervisor. N.J.A.C. 10A:4-9.1(a). The supervisor may change it to an "On-The-Spot Disciplinary Report" or forward it to the Hearing Officer. The report must be sufficiently detailed to provide the Disciplinary Hearing Officer (H.O.) with all of the relevant information relating to the incident in question. N.J.A.C. 10A:4-9.1(b).

Necessary information on the Disciplinary Report form includes:

		a.	Identification of the prisoner;
		b.	Identification of the Rule allegedly violated;
		c.	A description setting forth each element of the alleged infraction;
		d.	Witnesses (for the prosection and defense);
		e.	Disposition of physical evidence;
		f.	Immediate action taken (i.e. Pre-Hearing
			Detention);
		g.	The reporting staff member's signature;
		h.	The investigator's signature.

D.	NOTIFICATION OF PRISONER

The Disciplinary Report must be served upon the prisoner within 48 hours of the alleged violation, absent exceptional circumstances, and not less than 24 hours prior to the Disciplinary Hearing. It must be signed by the investigator delivering it, and the date and time of delivery must be noted on the Report. N.J.A.C. 10A:4-9.2. [Note: The N.J. Supreme Court recently held in Jacobs v. Stephens (A-1-94) that the 24 hour rule can be waived only in extreme circumstances. Simple neglect by the hearing officer usually will not constitute an extreme circumstance. In Jacobs the Court applied the harmless-error rule because Jacobs right to a full 24 hours (Jacobs had 22 and one-half hours) to prepare his defense is not a right that is essential to the fundamental fairness of his hearing.]
The notification process provides the prisoner an opportunity to review all the allegations against him/her and allows the prisoner time to prepare a defense, thereby preserving his/her 14th Amendment Due Process Rights.

E. 	INVESTIGATION OF THE ALLEGED INFRACTION

An investigation of the alleged infraction must be conducted within 48 hours of the prisoner's receipt of the Disciplinary Report. N.J.A.C. 10A:4-9.5(a).

The investigating officer, who cannot have been involved in the particular incident, must thoroughly investigate the incident.  As part of the investigation, he/she must verify that the prisoner has received a copy of the written Disciplinary Report, and read the charge to the prisoner. The investigating officer must inform the prisoner of his/her "Use Immunity Rights", take his/her plea, and inquire whether he/she wishes to make a statement concerning the charge. The investigator must then record the prisoner's statement concerning the incident. N.J.A.C. 10A:4-9.5(c).

The investigating officer may question witnesses and the reporting staff member and can "summarize their statements as may be necessary".  "Comments about the prisoner's attitude may be included in the investigator's report," N.J.A.C. 10A:4-9.5(d,e), as can comments and conclusions on the prisoner's prior record and behavior, the investigator's analysis of any conflicts between witnesses, and his/her conclusions of what in fact happened. 

The prisoner shall not receive a copy of the investigation. N.J.A.C. 10A:4-9.5(e).

F.	 SCHEDULING THE DISCIPLINARY (COURTLINE) HEARING

The Disciplinary Hearing must be held within seven (7) days of the alleged violation, not seven days from the prisoner's receipt of the Disciplinary Report. This time period includes an intervening weekend or holiday, except under exceptional circumstances. Should the seventh day fall on a weekend or holiday, the last day for the Hearing will be the following weekday. N.J.A.C. 10A:4-9.8(c).

Where the prisoner is confined in Pre-Hearing Detention, the Disciplinary Hearing should be held within three (3) days of the alleged violation, absent exceptional circumstances.  The provision regarding weekends and holidays also applies. N.J.A.C. 10A:4-9.8(c). However, failure of prison officials to comply with the 72 hour hearing rule does NOT necessarily violate due process.  King v. Hilton 525 F. Supp. 1192, 1200 (D.N.J. 1981).

Prisoners confined in Pre-Hearing Detention should be given priority in scheduling their appearances before the Disciplinary Hearing Officer. N.J.A.C. 10A:4-9.8(e).

No delays in investigating a case are permitted for the purpose of punishment or discipline. N.J.A.C. 10A:4-9.8(e).
G.	PRE-HEARING DETENTION

Pre-Hearing Detention may consist of confinement in the institution's Detention Unit, the prisoner's cell, or the prisoner's housing unit. N.J.A.C 10A:4-10.1(b).

"A prisoner shall be confined in Pre-Hearing Detention in those instances where it appears necessary to remove or isolate him/her from the general population, until an investigation into his/her alleged misconduct can be completed and a Disciplinary Hearing can be held."  N.J.A.C. 10A:4-10.1(a).

Confinement in Pre-Hearing Detention should be limited to those situations where it appears that if the prisoner were permitted to continue in general population, he/she would constitute a threat to other prisoners, staff members, himself/herself, or to the security and orderly operations of the correctional facility. N.J.A.C. 10A:4-10.1(a)(c).  

If a prisoner is confined in Pre-Hearing Detention, such confinement must be authorized, in writing, by the Shift Supervisor, on Form 255-I, "Authorization For Pre-Hearing Detention." The authorization should be completed prior to placing the prisoner in Pre-Hearing Detention, except in an emergency, in which case, the form must be completed immediately following placement. After all appropriate parties have signed the form, it is placed in the prisoner's Classification File. N.J.A.C. 10A:4-10.1(d).

Confinement in Pre-Hearing Detention must be reviewed and approved or disapproved, by either the Administrator, Assistant Administrator, or Director of Custody, within 24 hours of the prisoner's confinement. When none of these individuals are present during the 24 hour period, one must be contacted by telephone. N.J.A.C. 10A:4-10.1(e).

Any time which a prisoner spends in Pre-Hearing Detention is credited against any subsequent sanction imposed.  N.J.A.C.10A:4-10.1(f).

H.	EXCEPTIONAL CIRCUMSTANCES

There are NO definitions as to what constitutes "exceptional circumstances", "unavoidable delays," or "reasonable postponements."

The failure to adhere to procedural time limits will NOT mandate dismissal of a disciplinary charge. Dismissal is left to the discretion of the Disciplinary Hearing Officer.  This discretion however, should be guided by the following factors, N.J.A.C. 10a:4-9.9(a):

		a.	The length of the delay;
		b.	The reason for the delay;
		c.	The prejudice to the prisoner in preparing his/her defense;
		d.	The seriousness of the infraction.

II.  ADMINISTRATIVE HEARING PROCEDURES

A. AUTHORITY VESTED IN THE HEARING OFFICER

Except in an emergency requiring transfer, N.J.A.C. 10A:4-9.21, the Disciplinary Hearing will be conducted in the institution where the alleged infraction took place, by either a Disciplinary Hearing Officer designated by the Commissioner or, in rare instances, an Adjustment Commitee of three staff members designated by the Administrator of the institution. N.J.A.C. 10A:4-8.1.

The Hearing Officer has the authority to summon witnesses, take testimony, receive documentary evidence, and obtain access to all relevant institutional records necessary to adjudicate the disciplinary charge. N.J.A.C. 10A:4-8.4(a).

The Hearing Officer has the discretion to "keep the Hearing within reasonable limits." He or she can refuse the collection and presentation of evidence which (s)he deems unnecessary for an adequate understanding of the case, or to prevent lack of relevancy, harassment, abuse or repetitiveness. N.J.A.C.  10A:4-8.4(b). 

The Hearing Officer must review the Pre-Hearing Process to determine whether there has been compliance with the Pre-Hearing requirements. N.J.A.C. 10A:4-9.6.

B.	USE IMMUNITY RIGHTS

In all cases, the prisoner must be advised of his/her right to "Use Immunity," at both the investigative interview and the Disciplinary Hearing. N.J.A.C. 10A:4-9.3. This includes:

a. He/She has the right to remain silent;
b. He/She has the right to make a statement;
c. The statement cannot be used by a Prosecutor at any subsequent criminal proceedings;
d. Any evidence directly or indirectly obtained from a prisoner's statement cannot be used     at any subsequent criminal proceedings;
e. If he/she chooses to remain silent, the case will be decided on the available evidence. 

Failure to give these warnings/rights by an investigating officer will NOT be grounds for dismissing the Disciplinary Report.  However, if the H.O. finds that such failure has prevented the prisoner from adequately preparing his/her defense, (s)he may grant a postponement. N.J.A.C. 10A:4-9.3.  	

A prisoner's failure to invoke his/her Use Immunity Rights and make a statement in his/her defense may be considered by the Hearing Officer, together with other evidence, in the decision making process. However a finding of guilt may not be predicated solely upon his or her silence. N.J.A.C. 10A:4-9.4(b).

C.	PRELIMINARY INTERROGATION OF THE ACCUSED

The Hearing Officer must inquire whether the prisoner understands the rule that he/she is alleged to have violated, and the range of sanctions that are permissible for that charge. If the prisoner does not comprehend the nature of the charge, then an explanation must be given. N.J.S.A. 30:4-8.5.

The H.O. must also inquire whether the prisoner wishes to be represented by a counsel substitute. N.J.A.C. 10A:4-9.12.

If the prisoner pleads guilty, the H.O. should question him or her as to whether he/she wishes to testify about the circumstances affecting punishment.

D.	COUNSEL SUBSTITUTES

The New Jersey Supreme Court recognized, in Avant v. Clifford, 67 N.J. 496 (1975), that there is "a high per centage of prisoners who are totally or functionally illiterate," or otherwise incapable of representing themselves.  As a result, the Supreme Court mandated the provision of counsel substitute whenever a prisoner has been charged with an asterisk (*) offense. 

Although only briefly alluded to in N.J.A.C. 10A:4-9.12, counsel substitute is usually appointed when a prisoner is placed in Pre-Hearing Detention, or is hospitalized and is not in a position to work on his/her own case. The counsel substitute can then interview other prisoners, or correction personnel, who witnessed the incident and prepare the prisoner's defense.  Counsel substitute must be permitted reasonable time to speak with the prisoner, and at least 24 hours to prepare the defense. N.J.A.C.10A:4-9.12(d).

If the prisoner requests to be represented by a staff member, the Administrator should appoint one to provide representation.  N.J.A.C. 10A:4-9.12(c).

If necessary, the prisoner must be permitted to present his or her defense through an interpreter. N.J.A.C. 10A:4-9.12(e). See Acevedo v. Forcinito, 820 F.Supp. 886 (D.N.J. 1993), concerning provision of bilingual legal assistance.

E.	WITNESSES

At the Disciplinary Hearing, prisoners should be permitted to call witnesses and present documentary evidence in their defense, "when permitting them to do so will not be unduly hazardous to correctional facility safety or goals."  N.J.A.C.10A:4-9.13(a). However, the Hearing Officer has discretion to keep the Hearing within reasonable limits, and to refuse the calling of witnesses that may create a risk of reprisal, or who are repetitive. If the number of witnesses is limited, the reason(s) must be specified on the adjudication form. Unavailable witnesses may be asked to submit written statements. N.J.A.C. 10A:4-9.13(a).

Witnesses who are called to the Hearing may be questioned by  the H.O. and the prisoner, or his/her counsel substitute. Prisoners and their representatives may also request that certain questions be directed by the H.O. to witnesses. N.J.A.C. 10a:4-9.13(b).   

The Hearing Officer may also consider confidential reports which are not divulged to the accused, "for the purpose of maintaining institutional safety and order". N.J.A.C. 10A:4-9.13(b).

F.	CONFRONTATION AND CROSS-EXAMINATION

An opportunity for confrontation and cross-examination, if requested, should be provided to the prisoner when  necessary. N.J.A.C. 10A:4-9.14(a). Hearing Officers usually limit cross-examination to cases involving serious issues of credibility. When written statements are unclear, the H.O. should take oral testimony to resolve any ambiguities. See Nasir v. Beyer, N.J. App Div. Docket No. A-2669-84T6, 12/26/85, analyzed in The Bridge, vol. 2, and available upon request from the PSHLC. 

If confrontation or cross-examination is denied, the reasons must be stated on the Adjudication form. N.J.A.C. 10A:4-9.14(d).

G.	IN ABSENTIA HEARINGS

A prisoner is permitted to be present at all stages of the Disciplinary Hearing, except during deliberations.  However, the Hearing Officer may exclude the prisoner if it is determined that institutional security would be jeopardized by his/her presence. The reasons for the prisoner's exclusion must be well documented on the Adjudication form.  If the prisoner refuses to appear, the Hearing will be held in absentia (without his/her presence).  N.J.A.C. 10A:4-9.11(a).

H.	HEARINGS REQUIRING FURTHER INVESTIGATION

If the Hearing Officer believes that a Disciplinary Report was insufficiently investigated, then she/he may postpone a decision pending further investigation.  N.J.A.C. 10A:4-9.6.

Disciplinary Hearings which have been postponed must be reviewed by the H.O. within 48 Hours, if the prisoner is in Pre-Hearing Detention, or within seven days, in all other cases. Further postponement should be granted only in exceptional circumstances. N.J.A.C. 10A:4-9.7.

III.  THE DISCIPLINARY HEARING

A.	ORDER OF TESTIMONY

The case against the accused is presented first, either through testimony or through the reading of the Disciplinary Report and accompanying statements. The accused may then cross-examine the adverse witness(es) or reporting staff members, where allowed.
The prisoner may then present his/her defense, by calling witnesses or submitting statements. The Hearing Officer may then cross-examine the accused's witness(es).

B.	EVIDENCE REQUIRED

The standard for a finding of guilt at a Disciplinary Hearing is "substantial evidence that the prisoner committed a prohibited act." N.J.A.C. 10A:4-9.15(a).

N.J.A.C. 10A:4-9.15(b) mandates that evidence relied upon by the H.O. must be specified on the Adjudication form. This provision codifies a basic principle of Administrative Law, namely the exclusiveness of the record. As the New Jersey Supreme Court explained, in Mazza v. Cavicchia, 15 N.J. 498, 514 (1954):

Where a Hearing is prescribed by statute, nothing must be taken into account by the administrative hearing officer, in arriving at its determination, that has not been introduced in some manner into the record of the hearing."

See also New Jersey State Parole Board v. Cestari, 224 N.J. Super 534, 545 (App. Div. 1988). 

Numerous prisoners have won pro se disciplinary appeals on the issue of lack of substantial evidence.  See Holman v. Beyer, N.J. App. Div., Docket No. A-42585T6, 3/13/87, holding that H.O. must provide a written statement disclosing the facts relied on and the reasons why the corrections officer was believed and the prisoner was not; Jones v. DOC, N.J. App. Div., Docket No. A-3121-91T5, 7/14/93, both available upon request from the PSHLC.  

C.	CONFIDENTIAL INFORMANTS 

Where the courtline finding of guilt is based on evidence which includes confidential informants, the Adjudication report must contain the following, N.J.A.C. 10A:4-9.15(b)(1):

 (i)  A concise summary of the facts on which the Disciplinary Hearing Officer concluded that the informant was credible or his/her information reliable; and,

(ii) The informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in the statement.

The Hearing Officer is not permitted to disclose the identity of the informant. N.J.A.C. 10A:4-9.15(b)(2). However, use of confidential information in imposing discipline on a prisoner violates his/her Due Process rights, where there is no legitimate rationale for the  confidentiality, i.e., where the informant's identity is already known. See Muhammad v. Butler, 655 F.Supp. 1470, 1472 (D.N.J. 1987).

In one recently decided courtline appeal, the Appellate Division held that if disciplinary charges are based solely on the allegations of a confidential informant whose credibility is bolstered by a polygraph test, Due Process requires that the accused prisoner also be given a polygraph. Engel v. N.J. DOC, Docket No. A-1322-92T5, 01/13/94, available upon request from the PSHLC.

D.	ALTERATION OF DISCIPLINARY CHARGE

When it becomes apparent at a Hearing that an incorrect prohibited act is cited in the Disciplinary Report, but that the prisoner may have committed another prohibited act, the H. O. can modify the charge. The prisoner must then be given the option of a 24 hour postponement to prepare his/her defense against the new charge, or to proceed with adjudication of the new charge. N.J.A.C. 10A:4-9.16(a).

After reviewing the new charge, the prisoner's past disciplinary record and any special reports, the H.O. may conclude that the infraction is minor and suitable for handling by On-The-Spot Correction. The charge will then be referred back to the appropriate Shift Supervisor. N.J.A.C. 10a:9.16(b).
	
E.	THE DISCIPLINARY DECISION

After the Disciplinary Hearing has been completed, a written statement of fact findings must be given to the prisoner which includes, N.J.A.C. 10a:4-9.23(a):

1. The evidence relied upon;
2. The decision;
3. The reason for disciplinary action taken;
4. The reason for refusing to call witnesses;
5. The reason for failing to disclose items of evidence;
6. The reason for denying confrontation and cross examination.
                  
The prisoner must also be advised of his/her right to appeal. N.J.A.C. 10a:4-11.1(a).

A copy of a Disciplinary Decision of guilt will be kept in  prisoner's Classification File. N.J.A.C. 10A:4-0.23(b).

All prohibited acts which may constitute crimes of the first, second, third, or fourth degree under the New Jersey Criminal Code (N.J.S.A. 2C:1.1 et seq.), can be referred to the Prosecutor of the County in which the correctional facility is located. N.J.A.C. 10A:4-4.2. This is NOT considered to be double jeopardy.

F.	DISCIPLINARY SANCTIONS

Upon the H.O.'s determination of guilt, a sanction can be imposed. The sanctions for violation of a correctional facility rule or regulation are enumerated in N.J.A.C. 10A:4-5 and listed in the Appendix of this pamphlet.

The sanction should be individualized and derived from the following guidelines, N.J.A.C. 10A:4-9.17:

a. The offender's past history and institutional adjustment;
b. The setting and circumstances of the offense;
c. The prisoner's accountability for the offense;
d. The underlying reason for non-compliance with regulations;
e. The correctional goals for the prisoner.

The Appellate Division found that a disciplinary sanction against a prisoner found to have been involved in prison drug trafficking of 15 days detention, 365 days Administrative Segregation, and 270 days loss of commutation, was not excessive, notwithstanding the prisoner's claim that his/her sanctions were far in excess of those imposed upon other prisoners. Nigron v. New Jersey Department of Corrections, 220 N.J. Super. 425 (App. Div. 1987).

All items determined to be contraband, and found in the prisoner's possession, will be confiscated and disposed of. N.J.A.C. 10A:4-9.18.

G.	EXPUNGEMENT

If an prisoner is adjudicated not guilty, then the results of the Disciplinary Hearing will not be listed on his/her behavioral progress sheet. All references to the Disciplinary Report should be removed from his/her Classification File. N.J.A.C. 10A:4-9.25(a).

H.	REOPENING A DISCIPLINARY HEARING

A finding of not guilty represents the final disposition of a Disciplinary Report. N.J.A.C. 10A:4-9.26(a).

However, in the event of the discovery of new information which was not available at the time of the initial Hearing, or could not have been ascertained during the institution's investigation, a Disciplinary Hearing may be reopened. Information which was overlooked as a result of carelessness or an incomplete investigation is not considered new information. N.J.A.C. 10A:4-9.26(b).

As the Appellate Division recently pointed out in Engel v. N.J. DOC, this regulation gives the Superintendent of an institution authority to order a reinvestigation of the charge against an prisoner, based on information furnished after the appeal. The Engels decision is available upon request from the PSHLC.

IV.	APPELLATE PROCEDURES WITHIN THE INSTITUTION

A.	TIME TO APPEAL

A prisoner has 48 hours to appeal an adverse disciplinary decision. N.J.A.C. 10A:4-11.1(a)(1). However the Administrator or his/her designate may, for good cause shown, accept appeals submitted later. N.J.A.C. 10A:4-11.1(b).

B.	PROCESSING THE APPEAL

The appeal must be submitted on Form 256-I, which is given to the prisoner at the time of the Hearing Officer's decision. The form is completed in triplicate. All three copies must be signed by the person accepting the appeal who must note the time and date in the prisoner's presence. N.J.A.C. 10A:4-11.2(a)(b).

The original of the appeal must be forwarded that same day to the Administrator's Office. One copy goes to the institution's Hearing officer recorder; the other copy is returned to the prisoner for his/her records. N.J.A.C. 10A:4-11.2(c).

Prisoners unable to complete an appeal form may request the assistance of a fellow prisoner, whose name should appear on the form. N.J.A.C. 10A:4-11.1(f).

C.	SUSPENSION OF SANCTION PENDING APPEAL

If requested, a disciplinary sanction can be suspended pending appeal, if "the prisoner establishes by clear and convincing evidence, that his/her release will not jeopardize institutional security and order, that witnesses or victims will not be intimidated and that he/she will not engage in any actions which could otherwise interfere with the administration of justice." The request for stay pending appeal must be filed in writing to the Administrator. N.J.A.C. 10A:4-11.3(a)(b).

D.	REVIEW OF ISSUES RAISED

Upon receipt of the appeal, the Administrator may order an independent investigation of the charge and the proceedings of the Disciplinary Hearing. N.J.A.C. 10A:4-11.4(a). The Administrator has the option to request a total or partial re-investigation. N.J.A.C. 10A:4-11.4(b).

The re-investigation may be conducted by any person or unit designated by the Administrator, provided, however, that the individual had no contact with the first investigation of the Disciplinary Report. N.J.A.C. 10A:4-11.4(b).

The re-investigation may include many of the components of the original investigation, such as re-interrogating witnesses, re-evaluating reports and re-examining evidence. N.J.A.C. 10A:4-11.4(d).

If on the basis of new evidence, the Administrator finds severe discrepancies in issues of credibility, he/she may request a polygraph examination as part of the re-investigation. N.J.A.C. 10A:4-11.4(d); see Engel v. N.J. DOC, Docket No. 1322-92T5, which can be ordered from the PSHLC.

In reviewing an appeal, the following criteria should be applied:
a. Was there compliance with the standards on prisoner discipline?
b. Was the decision of the Hearing officer based upon substantial evidence?
c. Was the sanction imposed proportionate to the offense in view of the prisoner's         recent disciplinary history and present custody status?
d. Were extenuating circumstances considered?

E.	DISPOSITION OF APPEAL

The Administrator may approve, modify or reverse any disciplinary action, or may order further hearings. N.J.A.C. 10A:4-11.5(a).

The Administrator must rescind the decision of the Hearing Officer "if the review and/or investigation indicates that the evidence fails to demonstrate that any violation was committed, or if he/she determines that there was such failure to adhere to proper procedure at the initial hearing, that the prisoner had been irreparably prejudiced and would be unable to present a defense at a Re-Hearing." No further disciplinary action may then be taken. N.J.A.C. 10A:4-11.5(a)(1).

The Administrator must rescind the original decision and order a new Disciplinary Hearing "if the review and/or investigation indicates that procedural safeguards prescribed for a Disciplinary Hearing were not followed, or if new evidence not available at the original hearing is revealed." N.J.A.C. 10A:4-11.5(a)(2).

The Administrator must downgrade the sanction if the review or investigation indicates that “the sanction is disproportionate to the offense." N.J.A.C. 10A:4-11.5(a)(3).

The Administrator must order a new Disciplinary hearing "if the review and/or investigation indicates that the evidence does not support the findings of the Hearing Officer, but would support some form of disciplinary action for a lesser included offense than that with which the prisoner was charged." N.J.A.C. 10A:4-11.5(a)(4).

The Administrator cannot increase a sanction as a result of review on appeal. N.J.A.C. 10A:4-11.5(b).

F. NOTIFICATION OF APPEAL RESULTS

The prisoner must be notified in writing of the results of the review of his/her appeal and the reasons for it. N.J.A.C. 10A:4-11.7(a).

The Administrator's decision should be on Form 256-II. Copies of the Administrator's decision go to the Hearing Officer and into the prisoner's file. N.J.A.C. 10A4-11.7(b).

If the prisoner is in Disciplinary Detention, the decision must be given by the Administrator within 72 hours of receipt of the prisoner's appeal. In all other cases the appeal must be decided within seven working days. N.J.A.C. 10A:4-11.7(a)(1 and 2).

Only in exceptional circumstances may the time limit to act on an appeal be extended. In such a case the prisoner will be notified in writing, within the original prescribed time period, of such extension. “Where possible, the reason for the extension shall be explained in general terms to the prisoner.” N.J.A.C. 10A:4-11.7(c).

G.	EXPUNGEMENT

If the results of the Hearing officer are reversed on appeal, then the copy of the infraction and all notations regarding the infraction must be expunged from the prisoner’s records. N.J.A.C. 10A:4-9.25(b) and 11.8.

H.	RE-HEARINGS

If a Re-Hearing is ordered by the Administrator, the prisoner will be afforded all of the procedural rights accorded in a routine Disciplinary Hearing. N.J.A.C. 10A:4-11.6(a).

The Re-Hearing Hearing officer may be the same as that which heard the original charges, “unless the composition of that body was the procedural defect requiring the Re-Hearing or unless there is a substantial likelihood of prejudice.” N.J.A.C. 10A:4-11.6(b).

Re-Hearings are normally scheduled within 14 days from the date of the original Disciplinary Hearing. N.J.A.C. 10A:4-11.6(b)(1).

If a disciplinary sanction has not been suspended pending appeal a Re-Hearing must be scheduled with 24 hours of the Administrator’s decision. N.J.A.C. 10A:4-11.6(b)(2).

Re-Hearings may also be appealed, and the Administrator may exercise the same options provided for in a regular Disciplinary Hearing. N.J.A.C. 10A:4-11.6(c).

V.	APPEALS TO THE SUPERIOR COURT OF NEW JERSEY - APPELLATE DIVISION

A.	APPLICABILITY

Actions by the Department of Corrections are reviewable in the Superior Court of New Jersey (Appellate Division), in order to ensure that the discretionary powers delegated by the New Jersey State Legislature are not exercised arbitrarily or capriciously. N.J.S.A. Const. Art. 4, 5, & 6.

If the Administrator upholds a disciplinary sanction imposed by a Hearing officer, then the prisoner is permitted to appeal to the Appellate Division. N.J.C.R. 2:2-3(a)(2).

B.	TIME TO APPEAL

Pursuant to R. 2:4-1(b), of the Rules Governing the Courts of the State of New Jersey, the prisoner must appeal the adverse disciplinary decision within 45 days of receiving the Administrator’s decision.

If the prisoner waits longer than the 45 day period, then he/she will lose his/her right to appeal the decision to the Appellate Division. However, if there is a reasonable explanation for the delay, such as the prisoner's inability to get pen and paper because he or she is in lock-up, it is possible to file Nunc Pro Tunc, which means out of time.  You can order sample forms from the PSHLC.

C.	SUSPENSION OF SANCTION PENDING APPEAL

If requested, a disciplinary sanction will be suspended pending appeal if “the prisoner established by clear and convincing evidence, that his/her release will not jeopardize institutional security and order, that the witnesses or victims will not be intimidated and that he/she will not engage in any actions which could otherwise interfere with the administration of justice.” N.J.A.C. 10A:4-11.3(b) and 12.4(b).

If the Administrator denies the application for a stay on a disciplinary sanction, then the prisoner may seek a stay from the Appellate Division. N.J.A.C. 10A:4-12.4(d).

If an prisoner expects to be successful in the Appellate Division, it is almost a necessity that he/she receive a stay on the sanction imposed. The Court will dismiss the appeal on the technical ground of mootness if the sanction has been served. This is true even though the disciplinary decision itself will have an adverse impact on the prisoner̓s chances of parole.

D.	PREPARING THE APPEAL

Model forms are provided in the appendix of this chapter, which will enable a prisoner to file an appeal with the Superior Court of New Jersey-Appellate Division.

A letter consisting of a statement of facts and the grounds contested, must be prepared and submitted to the Court.

The following documents must be attached with the appendix of the letter brief:
a. The prisoner’s Disciplinary Report(s);
b. The Hearing Officer’s Adjudication Forms;
c. The prisoner’s appeal of the Disciplinary Report;
d. The result of the prisoner’s Disciplinary Appeal

With this information, the Appellate Division can then make an evaluation as to whether all Due Process requirements have been met.

E.	DISPOSITION OF APPEAL

To date, the Appellate Division has been reluctant to handle appeals from prisoner disciplinary proceedings. No Appellate Division appeal has yet to result in the reversal of a specific sanction. However, many significant changes in the Department of Corrections policies have resulted from cases of importance brought before the Appellate Court by pro by pro se prisoners.  Many such cases have been analyzed in The Bridge, the legal newsletter of the PSHLC, which you can subscribe to upon request and a small donation.

F. PETITIONS FOR CERTIFICATION TO THE NEW JERSEY SUPREME COURT

Appeals and Petitions for Certification to the Supreme Court of New Jersey are regulated under New Jersey Court Rule 2:12-1 through 2:12-11. You must file a Notice of Petition for Certification and serve your adversary with two (2) copies within twenty (20) days after the entry (filing) of the Judgment of the Appellate Division. The original notice must be filed with the Clerk of the Appellate Division and a copy filed with the Clerk of the Supreme Court.  Both courts are located in the Hughes Justice Complex, Trenton, NJ, 08625.

Ten (10) days after the filing of the Notice of Petition for Certification, you must file an original and nine (9) copies of a Petition for Certification and nine (9) copies of the brief you filed in the Appellate Division with the Clerk of the Supreme Court.  Two (2) copies of the Petition for Certification must be served on your adversary.  The Petition is in the form of a brief and should not exceed twenty (20) typewritten pages.  It should not be a rehash of the argument in the Appellate Division. Rather, it should argue that questions of general importance, conflict with other decisions of the Appellate Division, the interests of justice, or some other "special reason" justifies Certification.	 	

FORMS TO FILE AN APPEAL WITH THE
SUPERIOR COURT OF NEW JERSEY - APPELLATE DIVISION

FORM #1 - Notice of Appeal of Administrative Decision

FORM #2 - Civil Case Information Statement

FORM #3 - Notice of Motion for Leave to Appeal as an Indigent
    And for Assignment of Counsel

FORM #4 - Certification in Support of Motion

FORM #5 - Certification of Service

These five forms are utilized together.  Two copies of all forms should be sent to 1) the Superintendent of the inmate's institution, 2) the Office of the Deputy Commissioner of Corrections, and 3) the Office of the Attorney General.  The original and three copies should be sent to the Superior Court - Appellate Division.

ADDRESSES

Office of the Deputy Commissioner
 Whittlesey Road
CN-863
Trenton, NJ  08625

Office of the Attorney General
25 Market Street
CN-086
Trenton, NJ  08625

Clerk
Superior Court of New Jersey
Appellate Division
CN-006
Trenton, NJ  08625