Skip navigation

Tibbs Peeking Behind the Iron Curtain How Law Works Behind Prison Walls 2006

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
PEEKING BEHIND THE IRON CURTAIN:
HOW LAW “WORKS”
BEHIND PRISON WALLS
DONALD F. TIBBS*

I.

INTRODUCTION

By the time I arrived at the Fox Lake Correctional Institution it was over.
The institution was quiet and the air was thick with gloom. Prison guard
Matt Beckley was seriously injured, but he would live. Almost every guard
that I passed had an unflinching scowl on his face. Although I knew the
facts surrounding the momentous event, their looks spoke to me. They told
me what had happened. An inmate had brutally attacked a prison guard.
He grabbed Officer Beckley from behind, punched him in the face several
times, slammed his head repeatedly against the floor, and ripped patches of
hair from his head. When I openly queried how this could happen at Fox
Lake—considered one of the “best” prisons in the Wisconsin prison
system—a female guard simply retorted, “This is a prison after all.”1
In order for prisons to function optimally, they require heavy rule
orientation.2 These rules govern every aspect of prison life and carry
significant penalties for their violation. In reality, the nature and structure
*
Assistant Professor of Law and Director, Institute for Civil Rights and Justice, Southern University
Law Center; B.A., Georgia State University; J.D.; University of Pittsburgh; Ph.D. Arizona State
University; LL.M., University of Wisconsin Law School (expected December 2006). Writing projects
are the product of a repertory cast of backstage critics, secondary contributors, supportive personae, and
key grips. I am indebted to the entire ensemble, which includes Thomas J. Davis, Alfreda SellersDiamond, Ray Diamond, Okeokochu Oko, Russell Jones, Evelyn Wilson, Ruby Andrew, Melvin Pulver,
Thomas Gozinske, and my phenomenal research assistant, Ms. Bonnie Kendrick, who tirelessly toiled
with this project. As usual, Deborah Costela’s suggestions and patience exceed what can be
acknowledged in a sentence. Finally, I would like to offer special thanks to Peter Carstensen, Walter J.
Dickey, and the Haste Fellowship Committee at the University of Wisconsin, and Chancellor Freddie
Pitcher of the Southern University Law Center for awarding me a 2006 Summer Research Grant in
order to complete this work. This final product is a small token of my appreciation.
1
Field note from Fox Lake Prison, in Fox Lake, Wis. (Apr. 8, 2004).
2
Walter J. Dickey, The Promise and Problems of Rulemaking in Corrections: The Wisconsin
Experience, 1983 WIS. L. REV. 285. Professor Dickey was commissioned by the Wisconsin Department
of Corrections in 1978 to promulgate administrative rules. He was the principal drafter of those rules
and wrote of his experience in the above listed article which advances three conclusions: “First,
rulemaking makes important contributions to policymaking in corrections such as identifying objectives
of correctional programs and developing sensible means to achieve them. Second, several critical
factors influence rulemaking’s contribution to correctional policymaking. Among them are the state of
affairs within the correctional agency when rulemaking is undertaken; the process used for the
development of the rules; and the agency’s commitment to rulemaking. Third, the experience of drafting
administrative rules in Wisconsin provides important insight into the possibilities and problems of
rulemaking in a correctional agency.” Id at 287–88.

139

Electronic copy available at: http://ssrn.com/abstract=1255305

140

Southern California Interdisciplinary Law Journal

[Vol. 16:139

of these rules would in many cases earn them the designation as a system
of laws. In Wisconsin specifically, and quite possibly in most prisons
generally, every aspect of an inmate’s life is controlled by this system of
laws.3 These laws simultaneously structure daily life and provide the
means, or at minimum the rationale, to mete discipline as a form of social
control.4 These laws require that inmates maintain a daily regimen of
proper grooming,5 be punctual and attend all required activities,6 never lie
in general7 or about staff,8 and never disrespect another inmate or staff
3

See generally WIS. ADMIN. CODE DOC § 303 (2003) (twenty-seven prohibited acts, including group
resistance and petitions, disguising identity, disobeying orders, disrespect, soliciting staff, lying, lying
about staff, creating a hazard, punctuality and attendance, entry into another inmate’s quarters, refusal to
work or attend school, and inadequate work or study performance); IDAHO DEP’T OF CORR., POLICY &
PROCEDURES MANUAL, 318, attachment A (1987) (sixty prohibited acts, including writing, circulating,
or signing a petition that threatens institutional security, quitting a prison job without approval,
tattooing, insolence, lying, and trading property); 103 MASS. CODE REGS. 430.24 (2006), (ninety-two
prohibited acts, including flooding a cell, throwing objects, feigning illness, and refusing a cell or
housing assignment); OR. ADMIN. R. 291-105-0015, at 3–4 (1989) (fifteen disruptive acts, including
participation in an unauthorized organization, non-assaultive sexual activity, disrespect, and
disobedience); ALASKA ADMIN. CODE tit 22 § 400 (1999) (sixty prohibited acts including willful failure
or refusal to keep health care appointment, malingering or feigning illness, missing a prisoner count,
and wearing a disguise or mask); N.J. ADMIN. CODE § 10A:4–4.1 (2006) (ninety-eight prohibited acts,
including adulteration of any food or drink, unexcused absence from work or any assignment, being
unsanitary or untidy, and failing to stand count); GA COMP. R. & REGS. 125-3-2-.04 (2006) (eighty-five
prohibited acts, including insubordination, failure to complete a work assignment, hanging a sheet in the
cell, and circulating any form or petition among inmates); MD CODE REGS. 12.02.27.03 (2005) (fiftynine prohibited acts, including possession of a cellular phone, refusal to participate in DNA testing,
possession of currency exceeding the authorized amount, and use of vulgar language).
4
See Jim Thomas et al., Exacting Control Through Disciplinary Hearings: “Making Do” with Prison
Rules, 8 JUST. QUART. 37, 38 (1991).
5
WIS. ADMIN. CODE DOC § 303.56 (2006).
(1) Any inmate whose personal cleanliness or grooming is a health hazard to the inmate or
others or is offensive to others, and who has knowledge of this condition and the opportunity
to correct it, but does not, is guilty of an offense.
(2) Any inmate who fails to shower at least once a week, unless the inmate has a medical
excuse, is guilty of` an offense.
(3) The institution may require inmates performing work assignments which may be
hazardous to maintain suitably cut hair, or to wear protective equipment. Any inmate who
fails to wear such required equipment or who fails to maintain suitably cut hair is guilty of
an offense.
6

Id.at § 303.49 (2006).
Inmates shall attend and be on time for all activities for which they are scheduled. Any
inmate who violates this section is guilty of an offense, unless one of the following exist:
(1) The inmate is sick and reports this fact as required by institutional policies and
procedures.
(2) The inmate has a valid pass to be in some other location.
(3) The inmate is authorized to skip the event.

7

Id.at § 303.27 (2006).
Any inmate who makes a false written or oral statement which may affect the integrity,
safety or security of the institution is guilty of an offense.

8

Id.at § 303.271 (2003).
Any inmate who makes a false written or oral statement about a staff member which may
affect the integrity, safety or security of the institution or staff, and makes that false
statement outside the complaint review system is guilty of an offense.

Electronic copy available at: http://ssrn.com/abstract=1255305

2006]

How Law “Works” Behind Prison Walls

141

person.9 In Wisconsin, these laws are simply titled “Discipline” and are
located in the Department of Corrections’ section of the Wisconsin
Administrative Code.10
I presented the above sampling of laws to make two points. First,
contrary to what might be expected, not all laws available to inmate
violation are criminal. Second, given the abundance of laws imposed
behind prison walls, it is highly probable that even the most careful inmate
will commit a violation at some point during his incarceration. The
abundant opportunities to violate the law, no matter how minor or criminal,
expose the inmate to a near certain likelihood of an appearance before the
inmate disciplinary committee–an unpopular venue for inmates.
Inmate discipline and the due process rights associated with it have not
escaped scrutiny by lawyers and legal scholars.11 Since the 1800s,
commentators have revisited the rights an inmate is due,12 the court’s role
in protecting those rights,13 and how inmate discipline fits into the overall
area of Prisoners’ Rights Law.14 However, empirical studies of inmate
discipline have all but disappeared from the academic radar. With few
exceptions, ethnographical studies of inmate discipline have declined over

9

Id.at § 303.25 (2003).
Any inmate who shows disrespect to any person is guilty of an offense, whether or not the
subject of the disrespect is present and even if the expression or disrespect is in writing.
Disrespect includes, but is not limited to, derogatory or profane writing, remarks or gestures,
name-calling, yelling, and other acts made outside the formal complaint process which are
expressions of disrespect for authority.

10

See generally id.at §303 (2003).
For a general discussion of due process rights afforded inmates, see generally Bruce R. Jacob, Prison
Discipline and Inmate Rights, 5 HARV. C.R.-C.L. L. REV. 227 (1970); James E. Robertson, The Decline
of Negative Implication Jurisprudence: Procedural Fairness in Prison Discipline after Sandin v.
Conner, 32 TULSA L.J. 39 (1996); N.E. Shafer, Discretion, Due Process, and the Prison Discipline
Committee, 11 CRIM. JUST. REV. 37 (1986); Martin Fisher, Prisoner Rights – Due Process - Provisions
for Due Process and Access to Counsel in Prison Disciplinary Hearings – Clutchette v. Procunier, 2
N.Y.U. REV. L. & SOC. CHANGE 63 (1972); Michael Jackson, The Right to Counsel in Prison
Disciplinary Hearings, 20 U. BRIT. COLUM. L. REV. 221 (1986); George H. Funk, Baxter v. Palmigiano:
A Crippled Fifth Amendment Privilege for Inmates in Prison Disciplinary Proceedings, 1976 UTAH L.
REV. 572 (1976); Edwin W. Patterson, III, Self Incrimination-Availability of the Privilege Limited in
Prison Disciplinary Hearings, Baxter v. Palmigiano, 8 U. TOL. L. REV. 841 (1976-1977); Matthew
Groves, Proceedings for Prison Disciplinary Offences: the Conduct of Hearings and Principles of
Review, 24 MONASH U. L. REV. 338 (1998); Kenneth J. Meyers & John Rabiej, Burden of Proof and the
Standard of Judicial Review in Prison Disciplinary Hearings Involving Decisions Predicated Upon
Uncorroborated Hearsay Evidence, 4 S. ILL. U. L.J. 535 (1979); Dale A. Wein, Tibbetts v. State:
Judicial Review of Prison Disciplinary Actions, 29 S.D. L. REV. 197 (1983).
12
Confinement After Expiration of Sentence - Due Process of Law – Prison Discipline, 2 CRIM. L. MAG.
626 (1881); Carl Joseph Anton Mittermaier, Prison Discipline – The Present State of the Question, 14
LAW MAG. & L. REV. QUART. J. JURIS. 3d ser. 11 (1862-1863); Prison Discipline and Reformatory
Treatment, 31 LAW MAG. & L. REV. QUART. J. JURIS. 3d ser. 310 (1871); Of the Duty of Society in
Regard to Criminal Legislation and Prison Discipline, 24 AM. JURIST. & L. MAG. 306 (1840–1841).
13
Judicial Intervention in Prison Discipline, 63 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 200 (1972).
14
See Bruce Jacob, Prison Discipline and Inmate Rights, 5 HARV. C.R.-C.L. L. REV. 227 (1970);
Douglass J. Mann, Prison Discipline and the Eight Amendment: Out of the Quagmire, 1 AM. J. CRIM. L.
4 (1974); Mary Ellen Kris, Habeas Corpus Challenges to Prison Discipline, 43 FORDHAM L. REV. 963
(1974-1975); N. E. Schafer, Discretion, Due Process, and the Prison Discipline Committee, 11 CRIM.
JUST. REV. 37 (1986).
11

142

Southern California Interdisciplinary Law Journal

[Vol. 16:139

the last two decades.15 This has contributed to what sociologist Loic
Wacquant correctly refers to as the “curious eclipse” in prison research in
the 21st century.16
Although the United States’ prison population has ballooned,17 a
significant interest in what happens inside the prison has unfortunately not
followed. Many of you who now hold this writing in your hands have never
been inside of a prison, and in many cases have never had occasion to even
visit one. That is not necessarily a negative, with one exception—the fewer
persons who actually venture behind prison walls to investigate its
operations, the less we know about one of America’s most important
institutions. To further complicate matters, what has been gleaned about
prison life from previous studies seems to miss the mark on the law’s
impact on life behind prison walls.18 This fact arguably creates an inability
for legal scholars to move beyond anything more than theoretical
discussions of prison law in legal scholarship.
As my research unfolded, the attack on guard Matt Beckley served as a
reference point for sharpening my own understanding of the meaning and
significance of how the law “works” behind prison walls. I learned first
hand how prison inmates and staff make sense of the law in their daily
lives. For them, law is much more immediate than for us in free society.
For them, it jettisons in and out of their lives on a much more frequent
basis. For them, law is real, law is usual, and most important, law is
powerful.19
This article presents the results of an ethnographical study of the
inmate disciplinary process at the Fox Lake Correctional Institution (“Fox
Lake”), a minimum/medium security facility located in Fox Lake,
Wisconsin, about one hour east of the capital, Madison. It is presented with
two goals in mind: to expose how law “works” during inmate disciplinary
15

See Marilyn D. McShane & Michael H. Gentry, The Use of Counsel Substitutes: Prison Discipline in
Texas, 52 FED. PROBATION 27 (1988).
See generally Loic Wacquant, The Curious Eclipse of Prison Ethnography in the Age of Mass
Incarceration, 3 ETHNOGRAPHY 371 (2002).
17
See, e.g., Walter J. Dickey, Thinking Strategically About Correctional Resources, 2000 WIS. L. REV.
279 (noting that in Wisconsin the inmate population expanded from 5700 inmates in 1987 to 20,000
inmates, 5000 of whom were housed out of state by the year 2000); see also Ruth Gilmore,
Globalisation and US Prison Growth: From Military Keynesianism to Post-Keynesian Militarism, 40
RACE & CLASS 171 (1998–1999); Paul Street, Color Blind: Prison and the New American Racism, 48
DISSENT 49 (Summer 2001); Troy Duster, The New Crisis of Legitimacy in Controls, Prisons, and
Legal Structures, THE AMERICAN SOCIOLOGIST 20 (Spring 1995); David G. Savage, U.S. Prison
Population at Record High, THE SALT LAKE TRIBUNE, Sept. 13, 1994, at All; Curt Anderson, U.S.
Prison Population Now at All-Time High of 2 Million, THE ADVOCATE, (Baton Rouge, LA) Apr. 7,
2003, at 2A.
18
Michael Tonry & Joan Petersilia, American Prisons at the Beginning of the Twenty-First Century, in
PRISONS 1 (Michael Tonry & Joan Petersilia ed., 2000); CHRISTIAN PARENTI, LOCKDOWN AMERICA:
POLICE AND PRISONS IN THE AGE OF CRISIS (Verso Books 1999); STEPHEN R. DUGUID, CAN PRISONS
WORK: THE PRISONER AS OBJECT AND SUBJECT IN MODERN CORRECTIONS (Toronto University Press
2000); Angela Y. Davis, Race and Criminalization: Black Americans and the Punishment Industry, in
THE ANGELA DAVIS READER 61-73 (Joy Jamesed., 1998).
19
See generally Gordon Hawkins, THE PRISON: POLICY AND PRACTICE (Univ. of Chicago Press, 1976);
David F. Greenberg & Fay Stender, The Prison as a Lawless Agency, 21 BUFF. L. REV. 799 (1972);
Philip J. Hirschkop & Michael A. Millemann, The Unconstitutionality of Prison Life, 55 VA. L. REV.
795 (1969).
16

2006]

How Law “Works” Behind Prison Walls

143

hearings and to assess what “works” for dealing with law’s daily influence
behind prison walls. Overall, it is oriented towards developing a broad
understanding of how prison officials, line staff, and inmates understand
and use laws as they engage the process of punishing those already being
punished.
Part II introduces the location of this study, Fox Lake, and the
ethnographical methods I utilized. It orients the reader to the significance
of life inside what sociologist Erving Goffman famously referred to as “a
total institution.”20 Next, it briefly discusses how participant observation,
coupled with formal and informal interviews of the staff and inmates, are
an adequate ethnographical methodology for a study of this type.
Part III opens with insight into how law “works” by introducing the
subject of this study, the Inmate Disciplinary Process (“IDP”). It provides a
brief overview of how the process works through an explanation of its four
major components: (1) writing conduct reports that serve as legal charges
against the inmate; (2) classification of those charges by the Security
Director as either minor or major violations; (3) the actual disciplinary
hearing where an inmate appears before a tribunal to determine what fate
will be served as punishment; and, (4) the appeals process which serves as
the only real opportunity an inmate has to formally challenge the charges
waged against him.
Next, this section presents the actual results of the study with a small
sampling of cases taken from over one hundred disciplinary hearings
attended. It provides real accounts of inmates’, and in many cases the
staff’s, dealing with settling charges waged against them. It accounts for
how law “works” as inmates learn coping mechanisms by using a variety of
tactics such as admitting guilt, maintaining a good attitude and in one case,
even shedding tears. It also accounts how formal due process procedures
allow inmates to use staff advocates and other inmate witnesses during
their disciplinary hearings, and the problems associated with their use.
Part IV offers an assessment of the results in an effort to demonstrate
what “works” for disciplining prison inmates. This section presents my
evaluation of the IDP in an effort to describe how no single approach
works, but instead many approaches, working together, seem to produce
optimal results. Inmate discipline is such a salient institution inside of
prisons that the question of what works best is constantly being reevaluated
by prison administration, legislators, and lawyers for both sides. For
example, each year a small committee of mostly seasoned prison staff
20

See generally ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS
OTHER INMATES (Aldine Publishing Co. 1961). “Total institutions are based on the central feature
that they breakdown the formal barriers separating the three spheres of life: different places, different
co-participants, and different authorities. There are four leading characteristics of total institutions.
First, all aspects of life are conducted in the same place and under the same authority. Second, each
phase of a member’s daily activity is carried on in the immediate company of a large batch of others, all
of whom are treated alike and required to do the same thing together. Third, all aspects of the day’s
activities are tightly scheduled, with one activity leading at a prearranged time into the next. Fourth, the
various activities are brought together into a single rational plan designed to fulfill the needs of the
institution.” Id. at 6.

AND

144

Southern California Interdisciplinary Law Journal

[Vol. 16:139

meets to reevaluate the IDP. Part V concludes with my final assessment of
how law “works” behind prison walls.
As will be discussed in depth throughout this article, this study shows
that law is not an island unto itself. Instead, a successful disciplinary
process requires an intersection of “good” law, compassionate hearing
officers, and legally conscious inmates. Looking beyond the rule of law and
instead affording inmates greater protection by relying on carefully
cultivated practices grounded in human engagement understanding, and
compassion is what “works”—sometimes.
II.

METHODOLOGY

Sociologist Mary Bosworth said it best—“doing prison research is
difficult.”21 Some of the obstacles faced by carceral researchers are well
documented in the various prison ethnographies, articles and book sections
supporting this position.22 At the cusp of this difficulty are restrictions
hindering researchers’ access to study life in penal institutions. In fact,
widespread reluctance of prison officials to allow researchers “in” has
resulted in some penal scholars retreating to doing research by mail.23
While “mail methodologies” may work well for certain types of prison
research, it fails to satisfy all forms of empirical inquiry. Specifically, legal
ethnography, or ethnographical research of law’s operation in society,
requires the researcher to engage the law as a participant observer – one
who simultaneously watches while participating.24
A.

FOX LAKE CORRECTIONAL INSTITUTION25

Fox Lake is an all male correctional institution located in Dodge
County on an eighty-five-acre plot surrounded by approximately twelve
hundred acres owned by the State of Wisconsin. There are eighteen
buildings that consist of everything from an Administration Building to a
Recreation Building. The inmates are housed in either of three places: (1)
one of six housing units; (2) one of two 144 bed dormitories; or, (3) the
Segregation Building. In June 2004, during the middle of this research
21
Mary Bosworth et al., Doing Prison Research: Views from Inside, 11 QUALITATIVE INQUIRY 249
(2005).
22
See e.g., MARY BOSWORTH, ENGENDERING RESISTANCE: AGENCY AND POWER IN WOMEN’S PRISONS
(David Nelken ed., Ashgate Press 1999); Mary Bosworth, The Past as a Foreign Country?: Some
Methodological Implications of Doing Historical Criminology, 41 BRIT. J. OF CRIMINOLOGY 431-442
(2001); Alison Liebling, Doing Prison Research: Breaking the Silence, 3 THEORETICAL CRIMINOLOGY
147 (1999); Alison Liebling, David Price & Charles Elliott, Appreciative Inquiry and Relationships in
Prison, 1 PUNISHMENT & SOC’Y 71 (1999).
23
See Bosworth et al., supra note 21, at 251.
24
See generally JAMES P. SPRADLEY, PARTICIPANT OBSERVATION 53 (Wadsworth 1980); JOHN VAN
MAANEN, TALES OF THE FIELD: ON WRITING ETHNOGRAPHY 14-25 (University of Chicago Press 1988);
HARRY F. WOLCOTT, ETHNOGRAPHY: A WAY OF SEEING 44-51 (Alta Mira Press 1999); MICHAEL H.
AGAR, THE PROFESSIONAL STRANGER: AN INFORMAL INTRODUCTION TO ETHNOGRAPHY 163-166
(Academic Press 1996).
25
My relatively short connection to the Fox Lake Correctional Institution (“Fox Lake”) as an
ethnographic field site began in January 2004, while I was serving as the William H. Hastie law
teaching fellow at the University of Wisconsin Law School in Madison, Wisconsin.

2006]

How Law “Works” Behind Prison Walls

145

project, Fox Lake’s operating capacity was 691 inmates. At that time it held
1031.26
An interesting feature of Fox Lake is that it is the first medium security
institution in the United States to operate with a no-pass system and
freedom of movement.27 This primarily means that inmates move freely
about the institution without the requirement that they sign in and out when
they enter into designated areas.28 Another interesting feature is Fox Lake’s
philosophy— “responsible living.”29 It emphasizes a personal responsibility
approach to managing the inmates and relieves some of the burden from
the staff to act as daily overseers. According to Warden Thomas Borgen,
“this is what makes Fox Lakes a success.”30 Fox Lake is the first medium
security institution in the United States to operate with a no-pass system
and freedom of movement.31
B.

THE ETHNOGRAPHIC STUDY

One major component of my fieldwork at Fox Lake was participant
observation with field notes written on a daily basis. Each day immediately
following the conclusion of my visit, I would sit in my vehicle in the visitor
parking lot and record everything that I saw or heard that day. While this is
not the typical way to take fieldnotes, I wanted to appear less threatening
during my research by not writing every time someone spoke. This also
allowed me to more readily and deeply engage both the line staff and the
inmates. However, at a much later stage in the research process, I obtained
the Hearing Officer’s approval to write during the actual disciplinary
hearings.
To supplement my observations, I conducted several in-depth
interviews with the major players in the disciplinary process: the Warden,
the Security Director, the Hearing Officer, the Inmate Complaint Examiner,
and several line security officers. Additionally, I carried out shorter
thematic, non-recorded,32 interviews with a few inmates, which
contextualized much of what I was observing. These interviews were
specifically organized around issues of the role of law in their daily lives
and lasted no longer than thirty minutes each.
In order to gain a diversity of opinion and legal knowledge within my
research sample, I sought opportunities to observe different types of
disciplinary hearings on a variety of charges. I observed both ”waived” and
“full” due process hearings on charges that ranged from property crimes to
violent fist fights. There were relatively harmless inmates who were
26

WIS. DEP’T OF CORR., FOX LAKE CORR. INST. ANNUAL REPORT, JULY 1, 2003–JUNE 30, 2004.
Id. at 5.
Inmates are, however, to sign attendance rosters for classroom and work-related assignments.
29
WIS. DEP’T OF CORR., supra note 26, at 5.
30
Interview with Thomas Borgen, Warden, Fox Lake Corr. Inst., in Fox Lake, Wis. (Apr. 4, 2004).
31
WIS. DEP’T OF CORR., supra note 26, at 5.
32
As a security measure I was not allowed to take recording devices into the correctional institution. My
interviews with the warden and staff occurred outside of the prison either in my home, a local
establishment, or via telephone.
27
28

146

Southern California Interdisciplinary Law Journal

[Vol. 16:139

disciplined for failing to sign out as well as inmates who were organizing
gang activity in the prison. I also sought opportunities to observe
disciplinary hearings that transcended racial, class, and cultural boundaries.
I observed hearings for (mostly) African-American inmates, White inmates,
Latino inmates, gang members, Muslims, Skinheads, bikers, dope dealers,
and those that appeared to be in prison simply because they choose to
follow the wrong crowd.
The insights I gained from my interactions with inmates are carefully
woven into this study. Many appear as ethnographical comments made by
the inmates either during or after the disciplinary process took place. When
possible, I included the inmates’ words verbatim to give credence to their
insight and to avoid imposing my interpretation.
The focus of this study is on the IDP. The IDP offers a unique window
into the influence of law behind prison walls. Law establishes the
boundaries of the IDP and determines how it will proceed from start to
finish. Also, it offers substantial insight into the legal decision making
process in prison. Since the hearing officer immediately pronounces
judgment in the presence of the inmate following the presentation of
evidence, the gap between making and explaining the decision is far
narrower than in almost any other legal context.
The IDP also brought me in the closest contact with the inmates and
with their feelings regarding law in their everyday lives. During the IDP,
inmates are allowed to make a statement about the charges, present
evidence in their favor, sometimes have an advocate present, and debate the
relative merits of their punishment—all within an extremely short time
period. The typical disciplinary hearing ranged from five to twenty-five
minutes. In short, though behind prison walls, the IDP is a close replication
of a criminal court and presented the best venue to integrate the voices of
the inmates into my study.
III.

INMATE DISCIPLINE AT THE FOX LAKE
CORRECTIONAL INSTITUTION
A.

THE RULES

In 1974, Justice Byron White declared “there is no iron curtain drawn
between the Constitution and the prisons of this country.”33 Theoretically,
he is correct. Prison inmates retain certain rights and protections under the
United States Constitution.34 Unfortunately, in practice Justice White could
33

Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
See, e.g., Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944) (a prisoner retains all of the rights of
an ordinary citizen except those expressly, or by necessary implication, taken from him by law); State
ex rel. Thomas v. State, 198 N.W. 2d 675, 680 (Wis. 1972) (imprisonment is not totally a civil death; a
prisoner retains not only the freedom to have adequate access to the courts, but also the broader right to
petition the government for redress of grievances); see also Cruz v. Beto, 405 U.S. 319, 322 (1972)
(prisoners enjoy substantial religious freedom under the First and Fourteenth Amendment); Johnson v.
Avery, 393 U.S. 483, 490 (1969) (prisoners have access to the courts); Lee v. Washington, 390 U.S. 333,
34

2006]

How Law “Works” Behind Prison Walls

147

not be more wrong. Typically, once a prisoner is sentenced and incarcerated
in a correctional institution his life is generally discarded by the general
public. With the exception of a small cadre of family, friends, or other
interested ones, the public-at-large is not overly concerned about what
happens to a prisoner. As a result, prisons often escape the daily
microscope focused on other American institutions such as schools,
churches, and government. Additionally, prison administrators remain
empowered with the ultimate judicial gift—deference—leaving them to
operate their institutions vis-à-vis administrative codes with minimal
judicial interference.35
Almost every penal institution employs disciplinary codes prohibiting
an array of activities, many of which are not criminal.36 As a result,
determining guilt or innocence is a matter of no small consequence.
Potential penalties range from administrative segregation37 and loss of good
time credits,38 to room, cell or building confinement39 and loss of
privileges.40 The probability that inmates will face one of those penalties
334 (1968) (prisoners are protected from invidious racial discrimination); Haines v. Kerner, 404 U.S.
519 (1972).
35
See, e.g., WIS. ADMIN. CODE DOC §303 (2003) (twenty-seven prohibited acts, including group
resistance and petitions, disguising identity, disobeying orders, disrespect, soliciting staff, lying, lying
about staff, creating a hazard, punctuality and attendance, entry into another inmate’s quarters, refusal to
work or attend school, and inadequate work or study performance); IDAHO DEP’T OF CORRECTIONS,
POLICY AND PROCEDURAL MANUAL, 318-C, attachment A (1987) (eighty-three prohibited acts,
including writing, circulating, or signing a petition that threatens institutional security, quitting a prison
job without approval, tattooing, insolence, lying, and trading property); INDIANA DEP’T OF
CORRECTIONS, ADMINISTRATIVE PROCEDURES, MANUAL OF POLICIES AND PROCEDURES, Admin.
Procedure No. 02-02-101 app. 1 (1983) (eighty prohibited acts, including wearing a disguise,
unauthorized alteration of food and drink, participating in a work stoppage, creating a dummy,
insolence, lying, and being untidy); OR. ADMIN. R. 291-105-0015, at 3–4 (1989) (fifteen disruptive acts,
including participation in an unauthorized organization, caressing, kissing and other sexual activity,
disrespect, and disobedience); DOC POLICY AND OPERATING PROCEDURES, app.1 (VT. DEP’T OF CORR.)
(1989) (sixty-two prohibited acts, including refusal to take drug tests, sexual proposals, possession of
alcohol, and absences from head count); DOC POLICY DIRECTIVE 670.001 at 3–14 (W. VA DEP’T OF
CORR.) (1990) (seventy-two prohibited acts, including misuse of correspondence regulations, absence
from work, insubordination, and tardiness).
36
See supra note 35 and accompanying text.
37
See HARRY E. ALLEN & CLIFFORD E. SIMONSEN, CORRECTIONS IN AMERICA: AN INTRODUCTION 45–
46 (Macmillan Publishing Co. 5th ed. 1989). Administrative segregation is the same as solitary
confinement—also known as the prison-within-in-a-prison–with its inhabitants isolated from the
general prison population, confined to cells virtually the entire day, and excluded from prison programs
and industries. See also, WIS. ADMIN. CODE DOC §303.69 (2003).
38
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, DICTIONARY OF CRIMINAL JUSTICE DATA
TERMINOLOGY 98 (2d ed. 1981)(defining good time as “the amount of time deducted from time to be
served in prison . . . contingent upon good behavior . . . .”); see BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, PRISON RULE VIOLATORS 6, table 12 (Dec. 1989)[hereinafter PRISON RULE
VIOLATORS]. Among all rule violators, twenty-five percent lost good time for their most recent offense.
Inmates view forfeiture of good time as, “the most severe disciplinary punishment.” Bruce R. Jacobs &
K.M. Sharma, Disciplinary and Punitive Transfer Decisions and Due Process Values in the American
Correctional System, 12 STETSON L. REV. 1, 11 (1982).
39
WIS. ADMIN. CODE DOC §§ 303.72 (3), (7) (2003). “During the hours of confinement, the inmate may
not leave the inmate’s quarters without specific permission. The warden may, however, grant permission
for attendance at religious services, medical appointments, showers, and visits from outside persons. Id.
The warden may also remove any or all electronic equipment from an inmate’s quarters if room
confinement is imposed.” Id at §303.72 (3).
40
Id.at §303.72 (2), (4) (2003). “Specific privileges . . . that may be taken away include but are not
limited to: use of inmate’s own TV radio or cassette player; phone calls; participation in off grounds
activities; having meals in the dining room; and canteen privileges.” Id. at §303.72 (4).

148

Southern California Interdisciplinary Law Journal

[Vol. 16:139

during his or her incarceration brings to bear the fairness of the process
involved in disciplining inmates.41
Over the past thirty years, the inmate disciplinary process has faced
increasing judicial scrutiny. A significant number of inmate lawsuits have
arisen from prison disciplinary hearings.42 Most of those lawsuits allege
that the adjustment committee43 failed to follow the institution’s own rules,
and in doing so violated the inmate’s due process rights.44 Many of these
lawsuits could have been avoided, however, if those involved in the
hearings process paid greater attention to following the rules and
understanding more about what the rules intend. In 1978 the Wisconsin
State Legislature required that the Division of Corrections promulgate
administrative rules “relating to all aspects of adult institutional life.” In
what has been described as an “intensive four-year effort,” adult
institutional rules as well as rules relating to parole, probation, and the
entire juvenile correctional system were produced.45 Section 303 of the
Wisconsin Administrative Code, titled simply “Discipline,” contains the
law that governs virtually every aspect of the inmate disciplinary process.46
The purpose of Section 303 is plainly stated: “The department [of
corrections] may discipline inmates in its legal custody.”47 This section
applies to all inmates who are in the legal custody of the Wisconsin
Department of Corrections pursuant “to a conviction or court order
regardless of the inmate’s physical custody.”48 The phrase “regardless of
the inmate’s physical custody” may seem strange, but it reflects the reality
of modern prisons. Like most state prison systems, Wisconsin is
overcrowded and therefore must obtain out-of-state contracts to house
some of its inmates in other state prisons.49 For example, at the time of this

41
PRISON RULE VIOLATORS, supra note 38, at 1. In 1986,52.7% of state prisoners had been charged with
at least one violation during their incarceration. Id. More than nienty percent were found guilty. Id. On
average, each inmate committed about 1.5 violations per year. Id.
42
See e.g., Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (disciplinary hearings are subject to the due
process clause of the Fifth and Fourteenth Amendment); Ponte v. Real, 471 U.S. 491, 495 (1985) (due
process does not require that reasons for denying a witness must be given during administrative
hearing); Walpole v. Hill, 472 U.S. 445, 454 (1985) (only “some evidence” required to support finding
of guilt); Cleavinger v. Saxner, 474 U.S. 193 (1986) (hearing officers are not judges); Sandin v. Conner,
515 U.S. 472, 484 (1995) (prison rules do not create a state liberty interest in the inmate).
43
WIS. ADMIN. CODE DOC §303.82 (2003). The adjustment committee is typically the staff members
who conduct the disciplinary hearings in the prison. It may be comprised of several individuals or of
one experienced hearing officer, if resources dictate such. According to Section 303.82 of the Code, the
adjustment committee may be comprised of:

“(1) . . . one, 2 or 3 staff members appointed by the warden. At least one member of every
adjustment committee shall be a supervisor.”
44
See Anderson-El v. Cooke, 610 N.W. 2d 821 (2000) (prison officials must follow its own rules);
Bergman v. McCaughtry, 564 N.W.2d 712 (1997) (failure of prison officials to follow their own rules
invalidates disciplinary proceedings).
45
Dickey, supra note 2, at 287.
46
WIS. ADMIN. CODE DOC § 303 (2003).
47
Id.at § 303.01(1) (2003).
48
Id.
49
See WIS. DEP’T OF CORR., WISCONSIN DIVISION OF ADULT INSTITUTIONS 4 (2003). The Wisconsin
prison system has grown from 2000 to over 20,000 inmates since the 1970s. Id.

2006]

How Law “Works” Behind Prison Walls

149

writing fifty-three inmates are housed in Appleton, Minnesota.50 Although
outside of the state borders, they remain in the legal custody of the state of
Wisconsin and therefore are governed by Section 303.
Section 303.01(3) states: “the objectives of the disciplinary rules are
the following: a) the maintenance of order; b) the maintenance of a safe
setting; c) the rehabilitation of inmates; d) fairness in the treatment of
inmates; e) the development and maintenance of respect for the
correctional system and our system of government) punishment for
misbehavior; [and] g) deterrence of misbehavior.”51 According to the
appendix, “codifying the rules of discipline in a clear, specific way serves
these important objectives by itself. Having specific, written rules which
deal with prison discipline has the advantage of stating clearly what
conduct is prohibited, eliminating unnecessary discretion, increasing
equality of treatment, increasing fairness, and raising the probability that
inmates will follow the rules.”52 In a 1991 study of how prison rules exact
social control in the inmate disciplinary process, Professor Jim Thomas
noted that “legal rules touch the life of the institution only partially.”53 He
claimed that the “problem exists less between mandated rules and failure to
comply than between the understanding of the institution as embodied in
the promulgation of the rules and [the] difficult reality of life in the
prison.”54 As this study shows, however, legal rules touch the life of the
institution far more than “partially.” In fact, they are an integral part of
every aspect of the functioning of the prison. Without legal rules, there
could be no system of checks and balances on the due process rights of the
inmates.
B.

THE PROCESS

There are four stages to Wisconsin’s disciplinary system. The process
begins when an inmate is accused of a specific rule violation and is given a
Conduct Report.55 It continues through a Review by the Security Director
to determine if the rule violation is a major or minor violation.56 Afterward,
a hearing is conducted,57 which is governed by different procedures for
minor violations58 and major violations,59 depending on the rules the inmate
allegedly violated. Finally, all inmates are allowed to appeal a disciplinary
hearing on either substantive60 or procedural challenges.61

50

WIS. DEP’T OF CORR., DOC-302, OFFENDERS UNDER CONTROL ON APRIL 1, 2005 at 2 (2005).
WIS. ADMIN. CODE DOC § 303.01(3) (2003).
Id.at §303.01 app. (2003).
53
See Jim Thomas et al., Exacting Control Through Disciplinary Hearings: “Making Do” with Prison
Rules, 8 JUST. QUART. 37, 38 (1991).
54
Id.
55
WIS. ADMIN. CODE DOC § 303.66 (2003).
56
Id.at § 303.67(2003).
57
Id.at § 303.75-.76 (2003).
58
Id.at § 303.75 (2003).
59
Id.at § 303.76 (2003).
60
Id.at § 303.75(6) (2003).
61
Id.at § 303.76(7)(d) (2003).
51
52

150

Southern California Interdisciplinary Law Journal

[Vol. 16:139

1. Conduct Reports
According to the Wisconsin Administrative Code, an inmate may
receive a Conduct Report for violating any one of the fifty-four prohibited
acts listed in section 303 (“Disciplinary Code”).62 The Conduct Report can
be written by any staff member, not just security, who observes a rule
violation.63 If more than one staff member observes the violation of the
same incident, only one report is issued on the inmate.64 The Conduct
Report must detail the facts of the rule violation and the relevant sections of
the Disciplinary Code violated, even if they overlap.65 The Conduct Report
is then referred to the Security Director for review to determine the
classification of the violation—major or minor.66 One exception to this
issuance process is summary adjudication by a staff member.67
2. Classification by Security Director
Within two working days of the issuance of the Conduct Report, it is
reviewed by the Security Director.68 The purpose of the Security Director’s
review is to either approve summary dispositions prior to entry in the
inmate’s records,69 or otherwise determine the appropriateness of the
charge.70 If the rule violation is summarily adjudicated, no formal Conduct
Report is filed.71 If, on the other hand, a Conduct Report is issued, then the
Security Director takes one of four possible actions: (1) dismiss the
charges;72 (2) strike any rule violation that is not supported by the facts;73
(3) add any rule violation that is supported by the facts;74 or, (4) refer the
charges for further investigation.75 The final responsibility of the Security
Director’s review is to divide all remaining tickets into either major or
minor violations in accordance with the appropriate subchapters of the
Disciplinary Code.76
3. Disciplinary Hearing
The formal hearing procedures for Disciplinary Code violations are
determined by the Security Director’s classification. If a Disciplinary Code
violation is considered minor, the hearing procedures under section 303.75
for minor violations apply.77 Under the hearing procedures for minor
62

WIS. ADMIN. CODE DOC § 303.68 (1)(c) (2003). See also infra note 129.
WIS. ADMIN. CODE DOC § 303.66 (1) (2003).
Id.
65
Id.at § 303.66(2) (2003).
66
Id.at § 303.67 (2003).
67
Id.at § 303.65 (2003).
68
Id.at § 303.67 (2003).
69
Id.at § 303.67(2) (2003).
70
Id.at § 303.67(3) (2003).
71
Id.at § 303.65(3) (2003).
72
Id.at § 303.67(3)(a) (2003).
73
Id.at § 303.67(3)(b) (2003).
74
Id.at § 303.67(3)(c) (2003).
75
Id.at § 303.67(3)(d) (2003).
76
Id.at § 303.67(4) (2003).
77
Id.at § 303.75 (2003).
63
64

2006]

How Law “Works” Behind Prison Walls

151

violations, the inmate is first put on notice by having a copy of the
approved Conduct Report issued to him.78 Next, a hearing is scheduled to
be held after two, but no later than twenty-one working days have passed.79
A Hearing Officer is then assigned and a formal hearing is conducted.80 The
hearing concludes with a final decision and disposition, which usually
includes a penalty appropriate for minor violations.81
If a Conduct Report is classified as a major violation, the inmate elects
to either accept or waive a formal due process hearing.82 If he waives, then
the hearing proceeds as if it were a minor violation.83 If he elects a full due
process hearing, then an advocate is assigned to assist the inmate in
investigating the Conduct Report for the purposes of gathering defense
evidence.84 The formal hearing additionally affords the inmate the right to
call witnesses,85 introduce evidence on his behalf,86 and submit questions to
the Hearing Officer to ask witnesses.87
4. Appeal
All inmate appeals must be made to the Warden within ten working
days of the final disposition.88 Minor hearings, including waived due
process hearings, may appeal only the final disposition,89 while full due
process hearings may appeal either the decision or the sentence (the
penalty).90 The Warden reviews all records and forms pertaining to the
appeal and issues a final decision within sixty days following the appeals
request.91 The Warden’s decision is one of the following: (1) affirm the
decision or sentence;92 (2) modify all or part of the decision or sentence;93
(3) reverse the decision or sentence;94 or, (4) return the case for further
consideration or to complete or correct the record.95 The Warden’s decision
is final regarding the sufficiency of the evidence, while all procedural error
decisions are appealed according to the Inmate Complaint System.96

78

Id.at § 303.75(1) (2003).
Id.at § 303.75(2) (2003).
Id.at § 303.75(3)–(4) (2003).
81
Id.at § 303.75(5) (2003).
82
Id.at § 303.76(1)(c)–(e) (2003).
83
Id.at § 303.76(1)(d) (2003).
84
Id.at § 303.78 (2003).
85
Id.at § 303.76(b) (2003).
86
Id.at § 303.76(c) (2003).
87
Id.
88
Id.at §§ 303.75(6); 303.76(7) (2003).
89
Id.at § 303.75(6) (2003).
90
Id.at § 303.76(7) (2003).
91
Id.at § 303.76(7)(b) (2003).
92
Id.at § 303.76(7)(c)(1) (2003).
93
Id.at § 303.76(7)(c)(2) (2003).
94
Id.at § 303.76(7)(c)(3) (2003).
95
Id.at § 303.76(7)(c)(4) (2003).
96
Id.at §§ 303.76(7)(d); 310.08(3) (2003).
79
80

152

C.

Southern California Interdisciplinary Law Journal

[Vol. 16:139

HOW DOES THE INMATE DISCIPLINARY PROCESS “WORK”?

1. Conduct Reports and Disciplinary Charges
Enforcing the Disciplinary Code at Fox Lake is an ongoing activity. All
staff members, regardless of where they work, are required to keep a
constant and vigil watch over inmates in their area. If an inmate commits a
rule violation, the staff member is expected to file a Conduct Report citing
the relevant sections of the Disciplinary Code violated.97 In limited
circumstances, however, a staff member is given discretion whether or not
to issue a Conduct Report.98 In those cases, the staff member is allowed to
inform the inmate that his behavior is against the rules and give a warning
based on: (1) the inmate’s unfamiliarity with the rule;99 (2) lack of a similar
violation within the previous year;100 (3) the likelihood that the inmate will
not repeat the violation;101 or, (4) disservice to the purposes of the
Disciplinary Rules.102
Given the plethora of rules governing prison behavior, a staff member
could spend most of each shift writing Conduct Reports. As such, most
staff members at Fox Lake prefer, and thereby heavily utilize, the summary
disposition process. Of the 3333 total Conduct Reports issued at Fox Lake
from January 2004 to December 2004, 1481 (forty-four percent) resulted in
summary dispositions. They were routinely reserved for disciplinary
infractions that were nonviolent in nature. Most commonly they fell under
one of three main subchapters of the Disciplinary Code: (1) Movements
Offenses (twenty-nine percent);103 (2) Offenses Against Safety and Health
(fifteen percent);104 and, (3) Miscellaneous Offenses (nine percent).105
These three subchapters accounted for more than half of all summary
dispositions at Fox Lake.
There were, however, certain disciplinary infractions that seldom, if
ever, received summary disposition at Fox Lake. according to Hearing
Officer Captain Mel Pulver, if an inmate committed an infraction against
institutional security,106 bodily security,107 or against order,108 “there is a
100% probability that an inmate would receive a Conduct Report for rule
violations in those areas.”109 Subsequently, the seriousness of the rule
infractions under these three categories would determine if the inmate

97

Id.at § 303.66(1) (2003).
Id.
Id.at § 303.65(1)(a) (2003).
100
Id.at § 303.65(1)(b) (2003).
101
Id.at § 303.65(1)(c) (2003).
102
Id.at § 303.65(1)(d) (2003).
103
Id.at §§ 303.49–303.52 (2006).
104
Id.at §§ 303.54–303.58 (2003).
105
Id.at §§ 303.59–631 (2003).
106
Id.at §§ 303.18–303.23 (2003).
107
Id.at §§ 303.12–303.17 (2003).
108
Id.at §§ 303.24–303.32 (2003).
109
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Mar. 6,
2004).
98
99

2006]

How Law “Works” Behind Prison Walls

153

received a minor or major classification by the Security Direction. In
almost all cases (ninety-seven percent), the classification was major.
2. Classification by Security Director
Before a disciplinary charge is forwarded to the adjustment committee,
it is reviewed and classified by the Security Director.110 This review and
classification process is known among the correctional staff as
“magistrating the ticket.”111 Substantively, the Security Director’s
classification is the preemptive step in issuing notice to the inmate of the
charges pending against him.112
At Fox Lake an inmate receives a copy of the Conduct Report after the
conclusion of the review and classification by the Security Director.113
Typically, this notice is delivered to the inmate while he is housed in Unit
8, also known as the Temporary Lock Up.114 After a copy of the classified
Conduct Report is handed to the inmate, the original is forwarded to the
office of the Security Director where they are organized and collated
according to the date the Conduct Report was issued. The date of issuance
is important because DOC section 303.75 (hearing procedures for minor
violations) and DOC section 303.76 (hearing procedures for major
violations) both mandate that “the institution may not hold the hearing until
at least 2 working days” and not more “than 21 days after the inmate
receives the approved conduct report.”115 The Security Director, however,
may extend the twenty-one day hearing time limit or the inmate may waive
it in writing.116
The Security Director’s review is a vital step in the disciplinary process
because it serves several purposes. First, it acts as a check on staff
110

WIS. ADMIN. CODE DOC § 303.67 (2003).
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Mar. 3,
2004).
112
Wolff, 418 U.S. at 564. Notice is the first and possibly most important step in the Inmate
Disciplinary Process. It not only provides the inmate of the charges pending against him, but it also
informs the inmate of the date and time of the hearing on those charges. Also, Notice is important
because it signals to the inmate of the timing in requesting assistance if he intends to present witnesses
or evidence in defense of pending charges. Without Notice an inmate could be charged and,
theoretically, have his case adjudicated without an opportunity to be heard on the charges. In Wisconsin,
failure to properly notify an inmate, in the past, has resulted in invalidated disciplinary proceedings and
all charges dismissed against the inmate. See, e.g., Anderson-El v. Cooke, 610 N.W. 2d 821 (2000)
(prison officials must follow its own rules); Bergman v. McCaughtry, 564 N.W.2d 712 (1997) (failure of
prison officials to follow their own rules invalidates disciplinary proceedings).
113
WIS. ADMIN. CODE DOC § 303.75(1) (2003); §303.76(1).
114
When an inmate violates one of the disciplinary rules and he is issued a Conduct Report that will
require a hearing, the inmate is relocated from his current unit to Unit 8—the main Disciplinary unit at
Fox Lake. While there, the inmate awaits his Conduct Report to be magistrated and returned to him. If
the inmate is given a disposition that requires him to remain in either adjustment segregation, program
segregation, or disciplinary separation, he typically remains in Unit 8 for a period of time after which he
is transferred to Unit 7 and later back to the general population. The best scenario for the inmate is that
he receives disciplinary separation because his maximum release date is not extended due to his rule
violation. According to Captain Mel Pulver, “We prefer to issue disciplinary separation as a penalty.
That way we don’t extend any of the inmates maximum release date and can help the issue of
overcrowding in the prison.” Informational interview with Captain Mel Pulver, Fox Lake Corr. Inst., in
Dodge County, Wis. (May 14, 2005).
115
WIS. ADMIN. CODE DOC §§ 303.75–76 (2003).
116
Id.
111

154

Southern California Interdisciplinary Law Journal

[Vol. 16:139

discretionary power. Corrections staff are never permitted to issue Conduct
Reports in a retaliatory fashion. Also, the review ensures that the inmate is
properly charged. This, hopefully, instills legitimacy in the disciplinary
process for the inmates. Finally, the review process ensures that inmate
disciplinary measures will advance appropriately; thereby alleviating the
number of inmates remaining in the Disciplinary Unit for longer than is
necessary to adjudicate their charge.
Probably the most important aspect of the review process is
determining that the inmate is properly charged. It is vital to both the
success and legitimacy of the process to check the specific facts that gave
rise to the disciplinary charge against the actual charges issued to the
inmate. If staff members improperly charge an inmate without supporting
facts, it can be corrected at one of two points in the disciplinary process—
the Security Director’s review or the inmate’s disciplinary hearing. In
certain instances where the facts do not support the charge, the Security
Director “may dismiss a conduct report” altogether, thereby restoring the
inmate to full status and relieving the possibility that a discipline violation
will be issued on his record.117 Although not common, such dismissals do
occur. For example, in 2004, 128 of 3333 (.04%) issued Conduct Reports
resulted in dismissals. The low number of dismissals demonstrates the
quality of the staff in properly applying the disciplinary rules to inmate
violations.
The Security Director’s review also fetters out illegitimate charges
against the inmate. In the event an inmate receives, for example, a Conduct
Report containing multiple rule violations, some of which are legitimate
and others which are not, the Security Director is committed to a course of
one of two actions. He “may strike any section number if the statement of
facts could not support a finding of guilty of violating that section.”118
Conversely, if facts are present for a violation for which the inmate was not
charged, the Security Director “may add any section number if the
statement of facts could support a finding of guilty of violating that section
and the addition is appropriate.”119 This process acts both to alleviate the
inmate of any wrongdoing which is not justified, and to heighten
disciplinary charges against the inmate, thereby emphasizing the
seriousness with which prison rules must be attended. It should be noted
that the Security Director may reduce charges in the event of summary
disposition, but may not add to them, since summary punishment is based
on consent of the inmate and the inmate has only admitted the charges
which were originally written on the Conduct Report.120
The Security Director’s review may end in “refer[ral] . . . for further
investigation.”121 The purpose of the referral is to either clarify facts from
the staff member who issued the report or to discuss the situation with
117

Id.at § 303.67(3)(a) (2003).
Id.at § 303.67(3)(b) (2003).
Id.at § 303.67(3)(c) (2003).
120
Id.at § 303.67 app. note (2003)
121
Id.at § 303.67(3)(d) (2003).
118
119

2006]

How Law “Works” Behind Prison Walls

155

another staff member who was present at issuance. In either event, the goal
is to ensure that the inmate is properly charged only for rule violations that
he committed, and to discourage gratuitous issuances of Conduct Reports
as a means of coercion, retaliation, or punishment against the inmates.
At the conclusion of the review, the Security Director divides all
remaining Conduct Reports into either major offenses (which also include
reports with multiple offenses, both major and minor) or minor offenses.122
3. Disciplinary Hearings
On any given day twenty or more inmates, most with more than one
charge, may be adjudicated by the hearing officer.123 Which process the
hearing must follow is determined by whether the rule violations are
considered to be major or minor offenses.
a.

Minor Offenses

Minor offenses comprise the majority of charges that inmates face at
Fox Lake. Between January 2004 and December 2004, for example, 1282
hearings were conducted on 3333 issued Conduct Reports (thirty-eight
percent). Of these proceedings, 1159 (ninety percent) were adjudicated as
minor offenses, while the remaining 123 (ten percent) involved major
offenses.124 DOC section 303.68(1)(d) defines minor offenses as “any
violation of a disciplinary rule which is not a major offense under
subdivision (3) [list of major offenses] or (5) [a minor offense and major
offense on the same conduct report] or which the Security Director has not
classified as a major offense.”
The normal format followed at minor offense hearings begins as soon
as the inmate, escorted by a security officer, enters the hearing room.125
Once the inmate is seated, the hearing officer reads him the charge, obtains
his plea (guilty or not guilty), and asks for his explanation of the incident.
In the over one hundred minor offense hearings observed, more than ninety
percent of the inmates pled guilty. If the inmate admits the violation, the
hearing officer allows the inmate to testify to any mitigating circumstances.
Afterwards, the inmate vacates the room while the hearing officer reaches a
decision—which includes analyzing the facts, charges, and proposed
disposition. Upon his return, the inmate is informed of his punishment and
provided with a carbon copy of the adjudication form that explains the
evidence relied on and the reason for the action taken. At this point, the
inmate is also informed of his right to appeal the decision and what steps he
122

Id.at § 303.67(4) (2003).
Captain Mel Pulver has worked in Corrections for seventeen years and is the sole officer in charge of
conducting disciplinary hearings at Fox Lake. The result of this thesis is a credit to his assistance and
insight.
124
Interview with Thomas Gozinske, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 15, 2004).
125
The hearing room at Fox Lake was located in the same unit where inmates were placed in either
segregation or temporary lock up. In this case, that was Unit 8.
123

156

Southern California Interdisciplinary Law Journal

[Vol. 16:139

must take in order to do so. The minor offense hearing process on the
average takes no more than five minutes.126
In many minor offense cases, the disciplinary hearings are routine
affairs involving only a review of the charging staff member’s report, the
Security Director’s report and classification, the inmate’s testimony, several
questions by the hearing officer, and a disposition.127 Two examples of
minor offense cases are presented below. In order to protect the anonymity
of the inmate, inmate numbers are used in place of names.

126
Of the one hundred minor hearings observed the shortest was three minutes and the longest was
seven minutes.
127
The hearings observed during fieldwork (154) varied considerably in length, ranging from two
minutes to roughly one and one-half hours. All but four of the hearings lasted twenty-seven minutes or
less. The average amount of time spent on a case was nine minutes.

2006]

How Law “Works” Behind Prison Walls

157

Case 05
Charge: Disruptive Conduct (303.28)
Security Director’s Recommendation: Major Violation (inmate waived Full Due
Process Hearing)
Inmate Plea: Guilty
Observation: On the disciplinary report, the officer wrote, “while escorting inmates
#391006, and other inmates, from Unit to recreation area, inmate 391006 shouted
profanity by saying ‘this is bullshit’ in the presence of other inmates and guards.”
The inmate was charged with disruptive conduct and the Security Director, because
of the level of disrespect to the guards, classified it as a major violation. Inmate
waived his full Due Process Hearing rights and the hearing proceeded without
witnesses or rights to a staff advocate.
The hearing officer read this report to the inmate along with the Security
Director’s review of the violation. The Hearing Officer next asked the inmate what
he had to say about the offense. The inmate explained that he and other inmates
were being escorted from their unit to the recreation area. When they arrived, the
guard released the inmates for recreation time. Suddenly, the guard realized that
other members of the unit had not yet been escorted back in from the recreation
area, and called to reassemble the inmates. The guard then required them to return to
their unit and informed the inmates that he would take them to recreation in a few
minutes. On the way back to the unit, inmate 391006 stated that someone shouted,
“fuck that shit, you released us,” to which he openly replied, “this is some bullshit,”
in front of forty inmates.
Inmate 391006 stated that he was 100% guilty of the charges and that he just
got “caught up in the moment.” He apologized to the hearing officer for his behavior
and stated that it would not happen again. He also remained very jovial during the
entire hearing. The Hearing Officer informed inmate 391006 that his explanation
made sense, but that he “had to be more careful when emotions get tense.” He also
explained to inmate 391006 that although he had only been in prison for one year,
he had better learn to “control himself.” After deliberating for a few minutes, he
found the inmate guilty of Disruptive Conduct in violation of DOC 303.28. Since
inmate 391006 only had four minors in the past, he sentenced him sparingly.
Final Disposition: Three days adjustment, then back to unit.
Evidence Relied On: Officer’s conduct report and inmate testimony.
Reason for Disposition: Four previous minor violations and limited time in prison.
Length of Hearing: Five minutes.

158

Southern California Interdisciplinary Law Journal

[Vol. 16:139

Case 27
Charge: Violating Policies and Procedures (303.63)
Security Director’s Recommendation: Minor violation
Inmate Plea: Guilty
Observation: This disciplinary report was written by a staff teacher at Fox Lake. On
the disciplinary report, the staff member wrote, “[w]hile inmate 406386 was using
the computer in class, I discovered that he was using the computer program in an
unauthorized manner.”
During the hearing, the Hearing Officer read the conduct report to the inmate
and explained the charges against him. The hearing officer also pulled a series of
paper signs from under the table and presented them to the inmate. He asked the
inmate, “did you make these?” The inmate admitted to making the signs, which he
had to, as the signs imprinted his name in different fonts and colors. The officer then
asked the inmate if he had anything to say.
The inmate explained that he was in his computer class where they were
learning to make Power Point presentations. After he finished his assignment, he
was waiting for the teacher to come review his work, but she was helping another
student. He stated that he “was so excited about what the program could do,” that he
started playing with it and figured out how to make signs. Then he just made some
signs of his names, but didn’t think anything of it because, “I wasn’t looking at
porno or something like that. I didn’t think it was a big deal,” he stated, “I was
simply playing with the computer.”128
The Hearing Officer explained that being in a computer class was a privilege
and that he had just abused that privilege. He told the inmate that although he was
“playing” with the computer, that he was not in class to play and that his actions
constituted a violation of classroom policies and procedures. The Hearing Officer
deliberated for a few minutes and recalled the inmate to the room. The inmate was
found guilty and given three days adjustment and thirty days disciplinary separation.
Final Disposition: Three days adjustment segregation and thirty days disciplinary
separation.
Evidence Relied On: Conduct report, documentary evidence, and inmate admission.
Reason for Disposition: Inmate has to learn early that computer use is restricted.

Length of Hearing: Six minutes.

b.

Major Offenses

Major offenses require a different type of handling. Because of the
seriousness of the offense,129 the penalty possibilities,130 and the possibility
128

Inmate testimony during Disciplinary Hearing #27, Fox Lake Corr. Inst., Wis. (May 3, 2004).
WIS. ADMIN. CODE DOC § 303.68(1)(c) (2003). The code defines a major offense in two ways. First,
it is “a violation of a disciplinary rule for which a major penalty may be imposed if the accused inmate
is found guilty.” Id. Second, any violation of the following is considered a major offense: battery;
sexual assault (intercourse or contact); inciting or participating in a riot; cruelty to animals; escape;
disguising identity; arson; counterfeiting and forgery; possession of intoxicant, drug paraphernalia,
weapons (manufactured or altered); misuse of prescription medication; and use of intoxicants. Id.at C §
303.68(3) (2003).
130
Id.at § 303.68(1)(a) (2003). The list of major penalties include: adjustment segregation (DOC 303.69
and DOC 303.84); program segregation (DOC 303.70 and DOC 303.84); loss of good time or extension
of mandatory release date (DOC 303.84); disciplinary separation (DOC 303.70); room confinement for
sixteen to thirty days; loss of recreation privileges for over eight days for inmates in segregation;
129

2006]

How Law “Works” Behind Prison Walls

159

of change in the inmate’s classification or release date,131 special attention
must be paid to the due process requirements mandated by Section 303.
i.

Notice

When an inmate is alleged to have committed a major violation and the
Security Director has reviewed the conduct report, staff must give the
inmate a copy of the approved conduct report within two working days.132
The purpose of the notice is to inform the inmate of the following: (1) the
rule violated;133 (2) the potential penalties or other potential results;134 and,
(3) the inmate’s rights to a full due process hearing.135
ii. Choice of Waiver or Full Due Process Hearings
If an inmate prefers, he may waive his full due process rights and
proceed with his hearing under the guidelines for minor offenses.136 Waiver
provisions recognize that the inmate technically committed a major offense
but wishes to proceed informally without the assistance of an advocate or
witnesses. An inmate would chose to waive a formal due process hearing in
those instances where he would prefer to admit guilt and accept his
punishment rather than proceed with a lengthy hearing.
Although less formal than full due process hearings, waivers are an
important part of the IDP. The inmate is given notice of the charges
pending against him, the inmate is given opportunity to testify, (or explain),
what prompted the offense, and the inmate is given a written finding of
guilt, the punishments, and the reasons for the results.137
(a)

Waived Due Process Hearings

Waivers are common at Fox Lake. On 570 (seventeen percent)
occasions, inmates at Fox Lake chose to waive their right to a full due
process hearing. In fact, the majority of the hearings observed for this study
were waived due process hearings. Of the 152 hearings attended, 130
(eighty-five percent) inmates opted for the less formal hearing. Typically,
inmates chose to Waive for one of two reasons: either the inmate wanted to
gain favor from the hearing officer by accepting responsibility for his
actions and “taking his punishment like a man,” as one inmate claimed,138
building confinement for over thirty days; and loss of specific privileges for over sixty days. Id.at §
303.68(1)(a) (2003).
131
Id.at § 303.84(1)(j) (2003) (stating, “in every case where an inmate is found guilty of one or more
violations of the disciplinary rules, one or more of the following penalties shall be imposed . . . (j) loss
of good time for an inmate whose crime was committed before June 1, 1984, . . . or extension of the
mandatory release date for an inmate whose crime was committed on or after June 1, 1984”).
132
Id.at § 303.76(1) (2003).
133
Id.at § 303.76(1)(a) (2003).
134
Id.at § 303.76(1)(b) (2003).
135
Id.at § 303.76(1)(c) (2003).
136
Id.at § 303.76(1)(d) (2003).
137
Id.at § 303.75 (2003). 303.75 apprises the standards and requirements for waived due process
hearings, that proceed as minor hearings, including guarantees of notice, time limitations, hearing
officer’s requirements, the hearing, decision and disposition, and the appeal.
138
Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (May 12, 2005).

160

Southern California Interdisciplinary Law Journal

[Vol. 16:139

or the inmate did not believe that he could prevail defending against the
major offense and preferred not to “waste the time of the hearing officer,”
as another inmate claimed.139 In either instance, the major motivation
behind waiver was to, hopefully, gain some favor with the Hearing Officer
during the decision and disposition stage of the disciplinary hearing. In
most cases, the inmates’ strategy worked. They often found favor with the
Hearing Officer and received a more lenient disposition for accepting
responsibility for their actions.
(b)

Full Due Process Hearings

If the formal due process hearing is elected by the inmate, then DOC
Section 303.76(e) requires that the inmate be informed of all of the
following: (1) “the inmate may present oral, written, documentary and
physical evidence;”140 (2) “the inmate may have the assistance of a staff
advocate;”141 (3) the adjustment committee may permit direct questions or
written questions to be asked of witnesses;142 (4) “the adjustment
committee may prohibit repetitive, disrespectful or irrelevant questions;”143
(5) the inmate may appeal the final disposition;144 and, (6) in special
circumstances, the adjustment committee may conduct the hearing outside
of the presence of the inmate.145
Because of the very limited times that inmates requested full due
process hearings at Fox Lake, it was difficult to observe this process in
action. However, of the twenty-four full due process hearings observed,
two trends consistently emerged: trouble with advocates and trouble with
inmate witnesses. Both trends worked to the disadvantage of the inmates.
(i)

Representation by Advocate

According to DOC Section 303.78, “at each institution, the warden
may designate or hire staff members to serve as advocates for inmates in
disciplinary hearings at the institution.”146 The advocate’s purpose “is to
help the accused inmate to understand the charges against the inmate and to
help in the preparation and presentation of any defense the inmate has,
including gathering evidence and testimony, and preparing the inmate’s
own statement.”147 DOC Section 303.78 provides advocate assistance for
every inmate involved in a major rule violation regardless of the inmate’s
limitations or the difficulty of the proceedings.148 When an inmate elects to
have a full due process hearing, an advocate is automatically assigned to
assist him. In other words, the right is activated by simple election.
139

Id.
WIS. ADMIN. CODE DOC § 303.76(e)(1) (2003).
Id.at § 303.76(e)(2) (2003).
142
Id.at § 303.76(e)(3) (2003).
143
Id.at § 303.76(e)(4) (2003).
144
Id.at § 303.76(e)(5) (2003).
145
Id.at § 303.76(e)(6) (2003).
146
Id.at § 303.78(1)(a) (2003).
147
Id.at § 303.78(2) (2003).
148
Id.at § 303.76(e)(2) (2003).
140
141

2006]

How Law “Works” Behind Prison Walls

161

While advocate assistance appears to be adequate in the disciplinary
process, there is a problem with the advocate system. Although electing to
have an advocate is a simple process for the inmates, finding one who will
faithfully discharge his duties presents special obstacles. Even though DOC
Section 303.78(1)(a) authorizes a warden to hire advocates,149 there are
none on the payroll at Fox Lake. “We simply don’t have enough full due
process hearings to justify a full or part-time staff member to solely act as
an advocate,” explains Warden Tom Borgen.150 “Thus it makes no sense to
waste our budget on a salary for advocates. Instead, I assign the task to
present staff members and rotate the responsibility among my present staff.
Given my budgetary limitations, that is the best we can do.”151 There are
two problems that arise with the Warden’s system: the advocates either try
too hard, or they do not try hard enough.
(A)

Advocates Who Try Too Hard

The staff members assigned to serve as advocates typically come from
various departments at the prison. Advocates range from teachers to prison
maintenance workers. One difficulty presented with using random staff
members as advocates, as opposed to hiring them, is that the appointed staff
sometimes tries too hard to advocate for the inmate. In most cases,
appointed staff advocates are unaware that they do not have typical
attorney-client privileges during the hearing process. Also, advocates have
limited power to present evidence, question witnesses, make arguments to
the adjustment committee, or object to any aspect of the proceedings.152
This has presented problems over the years. “I have had to remind a few
too many advocates about what they can’t do during the hearings” explains
Captain Mel Pulver.153 “They come in here, especially if they are new,
thinking that they are the next Perry Mason, and jump bad during the
hearing. I have to remind them that this is my hearing and they are here as a
courtesy, not as a right. Then I call my guards and have them escorted out
of the Unit.”154
The appendix to DOC Section 303.78 supports Captain Pulver’s
position. It states that “the choice of an advocate, however, is not the
inmate’s constitutional right,” like the choice of an attorney.155 Instead, the
advocate is more like an assistant for the inmate and is required to conduct
149
Id.at § 303.78(a)(1) (2003) (stating “At each institution, the warden may designate or hire staff
members to serve as advocates for inmates during disciplinary hearings at the institution”).
150
Interview with Warden Tom Borgen, Fox Lake Corr. Inst., in Dodge County, Wis. (Aug. 10, 2004).
151
Id.
152
DOC 303.78(2) does allow for the advocate to “speak on behalf of the accused inmate at a
disciplinary hearing.” It is unclear in the rules whether that power extends to direct or crossexamination of witness, the presentation of evidence, or the making of objections (legal or non-legal)
during the proceedings. At Fox Lake, the practice is that the advocate is not vested with any powers that
legal counsel would have on behalf of the inmate if the proceeding were a trial. In fact, Captain Pulver
explicitly states, “disciplinary hearings are not like trials, and, therefore, we have no attorney-acting
advocates in the hearing room.” Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in
Dodge County, Wis. (Feb. 10, 2004).
153
Interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Aug. 4, 2004).
154
Id.
155
WIS. ADMIN. CODE DOC § 303.78 app. (2003).

162

Southern California Interdisciplinary Law Journal

[Vol. 16:139

himself accordingly. Since there is no confidentiality between the inmate
and the staff advocate, the advocate must reveal all information to the
hearing officer, even if it is contrary to the inmate’s interest. As noted
earlier by Captain Pulver, the problem arises when the advocate is not
aware of this requirement. Consider the case presented below as an
example of an advocate who was unaware of the requirement to divulge
incriminating information about the inmate. The resulting outcome was
disadvantageous to the inmate.

2006]

How Law “Works” Behind Prison Walls

163

Case 62
Charge: Fighting (303.17)
Security Director’s Recommendation: Major Violation—Full Due Process Hearing
Witnesses: 1
Inmate Plea: Not Guilty
Observation: This inmate was charged with fighting with another inmate while in the
bathroom, (outside of the view of the cameras), and while in the cell of another
inmate, (outside the view of the cameras). The staff advocate was an instructor at the
prison and had served as a staff advocate for more than three years.
During the hearing, the Hearing Officer read the charges against the inmate and
asked him how he pled. The staff advocate responded, “not guilty,” and the hearing
officer informed the advocate that the inmate had to respond. The inmate then
responded, “not guilty—with an explanation.” The staff advocate leaned towards
the inmate and spoke in his ear, and the inmate responded likewise. The hearing
officer, noticeably irritated at this point, reminded the advocate that he was not a
lawyer and there were no confidential communications between him and the inmate.
The Hearing Officer next asked the staff advocate what the inmate had told him. The
advocate appeared surprised, but was reminded that he had to reveal the
communication because the request was coming from a Captain of the security staff.
The advocate informed the Captain that the statement was not a security issue, but
acquiesced nonetheless. The advocate informed the hearing officer that he told the
inmate to change his plea to simply not guilty to which the inmate responded, “but I
did fight, I just want to explain myself.”156
The Hearing Officer raised an eyebrow and looked with surprise at the
advocate. The hearing officer then explained to the inmate that the advocate is not
his lawyer and he, (the advocate), is required to report all communications. The
Hearing Officer asked the inmate if the advocate’s statement was true, to which the
inmate replied, “yes.” The Hearing Officer concluded the hearing and asked the
inmate to leave the room while he deliberated. Out of the presence of the inmate, the
hearing officer admonished the advocate for his actions. He reminded the advocate
that “one of the purposes of the disciplinary hearings is to rehabilitate the inmates
for violating rules, not encourage them to lie to authority.”157 The advocate asked if
the “inmate was going to receive the full sentence because of me.”158 The Hearing
Officer responded that “the inmate was receiving the full sentence because that is
what he should receive for fighting, but you need to stop encouraging them to
lie.”159
Final Disposition: Six days adjustment segregation and 240 days of disciplinary
separation.
Evidence Relied On: Conduct Report and Testimony from Staff Advocate
Reason for Disposition: Fighting and Purporting to Lie
Length of Hearing: Fifteen minutes.

156
Inmate testimony in Disciplinary Hearing #92, Fox Lake Corr. Inst., in Dodge County, Wis. (May 3,
2004).
157
Informal communications between hearing officer and staff advocate during Disciplinary Hearing
#92, Fox Lake Corr. Inst., in Dodge County, Wis. (May 3, 2004).
158
Informal comments from staff advocate during Disciplinary Hearing #92, Fox Lake Corr. Inst., in
Dodge County, Wis. (May 3, 2004).
159
Informal communications between hearing officer and staff advocate during Disciplinary Hearing
#92, supra note 157.

164

Southern California Interdisciplinary Law Journal

(B)

[Vol. 16:139

Advocates Who Do Not Try Hard Enough

Another problem that arises with staff advocates is that some do not try
hard enough to advocate for the inmate. Although assigned the
responsibility to help the inmate, some staff advocates despise performing
this responsibility for a variety of reasons, the main one being conflict of
interest. According to one advocate, “I hate this job. It makes me take the
side of the inmate against my fellow officers. It’s us against them in here
[prison], and being an advocate puts me on the wrong side of the battle.”160
This staff advocate, who was employed at the prison as a maintenance
worker, worked on the case presented below.

Case 64
Charge: Disruptive Conduct (303.28), Disrespect (303.25)
Security Director’s Recommendation: Major Violation—Full Due Process Hearing.
Witnesses: 1
Inmate Plea: Not Guilty
Observation: In this case, the inmate received a conduct report for disruptive conduct
while he was at work in the kitchen. Upon receiving the ticket, he loudly asked the
guard, “man what about my warning? Don’t I receive a warning?” The guard
claimed that the inmate’s actions disrupted the work environment with loud talking
because the other inmates stopped work to look in their direction. The guard also
charged that speaking to him loudly and referring to him as “man” amounted to
disrespect according to DOC 303.25.
Present at the hearing were the inmate, his staff advocate, his one witness and
the Hearing Officer. The charges were read to the inmate and his witness was
escorted out of the room. The Hearing Officer asked the inmate if he wanted to
respond to the charges. The inmate looked at his advocate, who sat motionless
during the hearing. It appeared that the inmate wanted the advocate to speak. After a
brief moment of uncomfortable silence, the inmate finally spoke. He explained that
he “was concerned with the policy and procedures followed by the guard because
the guard did not issue the inmate a warning prior to writing the ticket.”161 The
inmate admits that he was late for work and denies ever getting loud with the guard
or publicly challenging the guard’s authority. The Hearing Officer asked the staff
advocate if he had anything to offer, to which the advocate uninterestedly responded,
“no.”162
The witness was requested to present his testimony. The witness claimed that
he “was within ten feet of the guard and he did not loud-talk enough to draw my
attention.”163 The witness also claimed that “work was not disrupted.”164 At this
point the advocate could have asked for the charges to be dropped because the alibi
witness contradicted the Conduct Report, but the advocate did nothing. Both the
160
Informal interview with Staff Advocate #2, Fox Lake Corr. Inst., in Dodge County, Wis. (May 3,
2004).
161
Inmate testimony during Disciplinary Hearing #94, Fox Lake Corr. Inst., in Dodge County, Wis.
(Aug. 9, 2004).
162
Testimony from Staff Advocate #3 during Disciplinary Hearing #94, Fox Lake Corr. Inst., in Dodge
County, Wis. (Aug. 9, 2004).
163
Witness (inmate) testimony during Disciplinary Hearing #94, Fox Lake Corr. Inst., in Dodge County,
Wis. (Aug. 9, 2004).
164
Id.

2006]

How Law “Works” Behind Prison Walls

165

witness and the inmate were escorted from the room while the Hearing Officer
deliberated. During deliberations, the staff advocate did not try to support the
inmate’s case. Instead, he asked the hearing officer, “what are you gonna do?”165 To
which the hearing officer responded in query, “what should I do?”166 The advocate
responded, “give him 3 days adjustment and send him back to his unit.”167 The
Hearing Officer nodded in agreement.
When the inmate returned, the hearing officer explained his position to the
inmate. “I am gonna give you 3 days adjustment and send you back to your unit,” he
stated. He continued, “although you had a witness that supported your testimony,
your staff advocate seems to believe that you should still get 3 days adjustment.”
The inmate looked surprisingly at his advocate. The Hearing Officer continued,
“maybe if more inmates from the kitchen stepped up to support your story or if your
advocate seemed adamant about your case, we could have had a different outcome,
but, this time, I am going to take your advocate’s recommendation for punishment—
he thinks you should be punished and he may know the story behind your case better
than me.”168
Final Disposition: Three days adjustment segregation then back to unit.
Evidence Relied On: Conduct Report and Lack of Advocate Support.
Reason for Disposition: No support from Staff Advocate.
Length of Hearing: Twenty minutes.

The level of disengagement and disinterest demonstrated by the staff
advocate was remarkable. Moments existed for the advocate to support the
inmate but, instead, he did nothing. There were moments during the hearing
that the Hearing Officer glanced up from his chart to make eye contact with
the advocate as though waiting for him to make a suggestion. However, the
staff advocate simply sat silently, staring down at the table. Note that the
advocate did speak during deliberations, but his words did not support the
inmate. Instead, he suggested that the inmate receive time in the
segregation unit rather than exoneration. This caused the Hearing Officer to
completely disregarded the witness’s alibi testimony and, instead, act upon
the suggestion of the staff advocate. Although the inmate was not given a
full penalty for his rule violation, it is implied from the hearing officer’s
comments that the inmate could have been found not guilty if his advocate
had supported his position.
Staff advocates who do not faithfully discharge their duties create some
troublesome outcomes to which the inmates have no recourse. Since the
advocate owes no fiduciary duty to the inmate, the inmate has no legal
grounds to complain that the advocate did not perform his duties
adequately, as would otherwise be available in the case of incompetent
165
Informal comments from Staff Advocate #3 during Disciplinary Hearing #94, Fox Lake Corr. Inst.,
in Dodge County, Wis. (Aug. 9, 2004).
166
Informal comments from hearing officer during Disciplinary Hearing #94, Fox Lake Corr. Inst., in
Dodge County, Wis. (Aug. 9, 2004).
167
Informal comments from Staff Advocate #3 during Disciplinary Hearing #94, supra note 165.
168
Informal comments from hearing officer during Disciplinary Hearing #94, supra note 166.

166

Southern California Interdisciplinary Law Journal

[Vol. 16:139

legal representation.169 Further, the advocate is only required to support the
inmate, not seek his exoneration. Since the inmate is removed from the
hearing room while the Hearing Officer and advocate speak, the inmate
may never know to what extent the advocate did or did not support the
inmate’s case. Even though the inmate can complain about his advocate
through the prison’s Inmate Complaint System, he will most likely lose
because there is no actionable basis for the complaint.170 Although not
observed at Fox Lake, the possibilities for abuse of the process remain
endless when advocates do not faithfully discharge their duties.
(ii)

Witnesses

The common law recognizes that inmates may call witnesses who are
“necessary for a proper understanding of the case . . . [are] reasonably
available,” and whose appearance will not be “unduly hazardous to
institutional safety or correctional goals.”171 DOC Section 303.81(1)
complies with this standard by providing guidelines for witnesses during
full due process hearings. It provides that “the accused [inmate] may
directly or through an advocate make a request to the security office for
witnesses to appear at a major violation hearing, including requests for the
appearance of the staff member who signed the conduct report.”172 An
inmate may present “no more than two witnesses . . . and shall make the
request within 2 days of the service of notice.”173
The election of witnesses may create potential safety and coercion
issues. Witnesses could be attacked for their participation in a specific
inmate’s hearing, or forced to participate or lie to the hearing committee
under the threat of violence or retaliation. In Wisconsin, DOC Sections
303.81(3) and DOC 303.81(5) attempt to guard against those issues. DOC
303.81(3) states, “witnesses requested by the accused . . . shall attend the
disciplinary hearing unless . . . [there exists]: the risk of harm to the witness
if the witness testifies.”174 The goal here is to prevent inmate from using
power or coercion to force weaker inmates to provide supporting testimony.
If a witness is denied for the above reason, the inmate will most likely
complain that he was not allowed to present evidence on his behalf. DOC
Section 303.81(5) attempts to alleviate this issue by allowing confidential
or anonymous witnesses. It states, “[i]f the institution finds that testifying
would pose a risk of harm to the witness, the [adjustment] committee may
169

See generally James D. Holzauer, The Contractual Duty of Competent Representation, 63 CHI.-KENT
L. REV. 255 (1987); Richard Klein, The Relationship of the Court and Defense Counsel: The Impact on
Competent Representation and Proposals for Reform, 29 B.C. L. REV. 531 (1987-1988); Suzanne E.
Mounts, Public Defender Programs, Professional Responsibility, and Competent Representation, 1982
WIS. L. REV. 473 (1982).
170
The Wisconsin Administrative Code for the Department of Corrections provides a formal process by
which all inmates may file complaints about various aspects of the correctional institution in which they
reside. The complaints are governed by Chapter 310, titled, Complaint Procedures. See WIS. ADMIN.
CODE DOC § 310 (2003).
171
Wolff, 418 U.S. at 566.
172
WIS. ADMIN. CODE DOC § 303.81(1) (2003).
173
Id.
174
Id.at § 303.81(3) (2003).

2006]

How Law “Works” Behind Prison Walls

167

consider a corroborated, signed statement under oath from that witness
without revealing the witness’s identity. . . .”175
Almost all of the inmates who elected full due process hearings at Fox
Lake also requested witnesses. An interesting pattern emerged during the
five hearings using witnesses observed during this study. The witnesses
would willingly appear at the hearing, but when allowed to testify, (always
out of the presence of the accused inmate),176 they offered nothing in terms
of an alibi for the accused inmate. In some cases, their testimony was
almost laughable. According to one inmate, the tension that arose was
“being a snitch and bitch.” He explained, “when you rat out another inmate
you are labeled a snitch, that’ll get you a beat down. When you help
another inmate out too much, you are labeled his bitch, meaning you would
sell your own ass for him—that would get you a beat down also. As you
can see, nobody likes being called to be a witness.”177 Consider the case
presented below as an example of how inmate witnesses manage the
tension.

175

Id.at § 303.81(5) (2003).
The process required the witnesses to swear before the accused inmate that they were present to
testify on his behalf, and then they were escorted out of the room while the formal charges were read.
When it was time to testify, the accused inmate was escorted out of the room while the witness was
escorted into the hearing room. This process was performed for each witness that was present to testify.
Afterwards, the witnesses were escorted from the hearing back to the cell units before the final
disposition and penalty was assigned to the accused inmate.
177
Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 8, 2004).
176

168

Southern California Interdisciplinary Law Journal

[Vol. 16:139

Case 63
Charge: Disruptive Conduct (303.28), Disrespect (303.25), Lying (303.27), Fighting
(303.17)
Security Director’s Recommendation: Major Violation—Full Due Process Hearing
Witnesses: 2
Inmate Plea: Not Guilty
Observation: On the disciplinary report the officer wrote, “Inmate 117718 and a group
of 3 other inmates were playing cards when suddenly inmate 117718 rose up from
the table and threw cards across the table at another inmate. He then threatened to
“kick the ass” of the other inmate and invited him into the bathroom where they
could fight out of the sight of the cameras. He then walked around the table and hit
the other inmate in the back of the head. The other inmate got up and followed
inmate 117718 towards the bathroom but turned instead and went into his cell.
Inmate 117718 continued to taunt the other inmate and was eventually taken to
TLU.”
At the hearing, the Hearing Officer read the charges to the inmate and asked
him how did he plead, to which he responded, “not guilty.” Inmate 117718 claimed
that he was playing cards and had gotten upset, but placed the cards down on the
table and walked around the table towards the other inmate. He denies ever calling
him a name, hitting him in the head, or inviting him to the restroom to fight. The
advocate stated that the witnesses would corroborate inmate’s 117718 story.
The witnesses were called in individually and they both responded with the
same story. They claimed that they saw inmate 117718 get upset and that when he
placed the cards on the table to walk around to the other side, they both put their
heads down and did not see a thing. They both further testified that because they had
their heads down, they were unable to provide eyewitness testimony to the event.
Both witnesses were excused. The staff advocate was shocked.
Inmate 117718 was returned to the room and informed that his witnesses failed
to corroborate his story. The inmate looked surprised and glanced towards the
advocate, who nodded in the affirmative. The Hearing Officer then pronounced his
final disposition for the hearing.
Final Disposition: Maximum sentence—eight days adjustment segregation and 360
days disciplinary separation.
Evidence Relied On: Conduct Report and Eyewitness Testimony
Reason for Disposition: Seriousness of the offense and uncorroborated eyewitness
testimony.
Length of Hearing: Twenty-five minutes.

2006]

How Law “Works” Behind Prison Walls

(c)

169

Inmate Strategies During Hearings

During both major and minor hearings, inmates employed a variety of
approaches in an effort to gain favor with the Hearing Officer and
therefore, hopefully, obtain a more lenient sentence. The three main
approaches used by the inmates were admitting guilt, maintaining a
positive attitude, and shedding tears.
(i)

Admitting Guilt

In many instances, the inmate entered the hearing room and admitted
guilt for his actions. The admission often occurred prior to the adjustment
committee reading the necessary charges. “The sooner I accepted
responsibility the quicker the hearing would be over; and I looked good to
the Captain [Pulver],” one inmate rationalized.178 “I know that’s why I got a
more lenient sentence.” 179
Several other inmates followed suit. Of the 130 minor offense and
waived due process hearings observed, 120 (ninety-two percent) inmates
admitted guilt. In some instances, the penalty was still harsh, although
admittedly less harsh with the guilty admission. Routinely, the inmates
resolved that the penalty was forthcoming anyway, and the less harsh it was
the better. “I knew that Cap[tain Pulver] was gonna sock it to me, man I
screwed up bad. I just tried to show him that I was a man and I could do my
time rain or shine,” claimed one inmate.180
The following cases are examples of inmates employing this strategy.
Case 25
Charge: Violation of Institutional Policies and Procedures (303.63) and Inadequate
Work Service (303.62)
Security Director’s Recommendation: Minor Violation
Inmate Plea: Guilty
Observation: This inmate was charged with failing to sign in when he entered into the
cell area (violation of institutional policies and procedures) and failing to perform
adequately at his present job (inadequate work service) in the kitchen, because he
left his area unclean.
During the hearing, the Hearing Officer read the inmate the charges against him and
gave him an opportunity to explain his actions. The inmate responded, “guilty as
charged, Cap[tain Pulver].”181 The inmate did not even attempt to offer explanation
for his actions.
Final Disposition: Thirty days disciplinary separation.
Evidence Relied On: Conduct Report and Inmate Testimony
Reason for Disposition: Eight conduct reports in the past three months.
Length of Hearing: Three minutes.
178

Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (May 17, 2005).
Id.
Id.
181
Inmate testimony during Disciplinary Hearing #25, Fox Lake Corr. Inst., in Dodge County, Wis.
(May 3, 2004).
179
180

170

Southern California Interdisciplinary Law Journal

[Vol. 16:139

Case 32
Charge: Punctuality and Attendance (303.49) & Being in an Unassigned Area
(303.511).
Security Director’s Recommendation: Major Violations (extenuating circumstances)
Inmate Plea: Guilty
Observation: This inmate was new to the facility but was under watch for suspected
gang activity. The gang officers had observations of him socializing with known
members of the Latin Kings gang. When this inmate presented himself for his
hearing, he admitted guilt in order to receive a light sentence.
The Hearing Officer explained to him that he was charged with being in an
unassigned area. The inmate was supposed to be in class, but was instead found in
the recreation area. When given an opportunity to explain himself, the inmate stated,
“I thought class was cancelled. There was no teacher or students there when I
arrived. So I went to rec[reation].”182 The Hearing Officer asked the inmate why he
did not return to his cell area, to which the inmate responded, “I don’t know.”
The inmate was asked to leave the room while the Hearing Officer revealed the
particulars of the case. Since this inmate was new, the prison staff did not want to
allow him an opportunity to associate with the prison gangs. It was confirmed by a
reliable informant that this inmate expressed interest in associating with the prison
gang. Rather than allow him that opportunity, which would undoubtedly lead to
more rule violations in the future, the Hearing Officer wished to “cut the snake off at
the head and get him out of that unit,” as he explained.183
When the inmate returned he was given a harsh sentence as compared to the
nature of his offense—six days adjustment, 180 days disciplinary separation—the
maximum sentence allowed.184
Final Disposition: Maximum Sentence
Evidence Relied On: Conduct Report, Gang Officer’s Report, Inmate Testimony
Reason for Disposition: Suspected gang activity (requiring removal from unit).
Length of Hearing: Eight minutes.

182

Informal comments made by inmate during Disciplinary Hearing #32, Fox Lake Corr. Inst., in Dodge
County, Wis. (Feb. 3, 2004).
Informal comments made by Hearing Officer Captain Mel Pulver during Disciplinary Hearing #32,
Fox Lake Corr. Inst., in Dodge County, Wis. (Feb. 3, 2004).
184
See DOC 303.84 Schedule of Penalties (stating that an inmate charged with this offense (DOC
303.511) may be sentenced to six days adjustment segregation and 180 days disciplinary separation).
183

2006]

How Law “Works” Behind Prison Walls

(ii)

171

Attitude Matters

Another approach used by the inmates to gain favor was to maintain a
positive attitude regarding the hearing and penalty. In several cases the
inmate’s were oddly jubilant in the hearing room. Some of them would
spend the next 180 days in Unit 8, restricted confinement, with limited
privileges,185 yet they managed to smile, laugh, and even joke with the
adjustment committee.
If an inmate displayed a poor attitude towards the hearing, the Hearing
Officer, or his culpability, the possibility of a less harsh penalty dissipated.
In one case, an inmate came into the hearing, accused the staff member of
lying on the conduct report, accused the Hearing Officer of conducting the
hearing dishonestly, and called one of the officers a “motherfucker.”186 Due
to his poor attitude, not only would he lose his present case, but he would
also face additional charges for disrespecting the officer.187
The cases presented below demonstrate how attitude matters. What is
most notable is the initial charge and the penalty when attitude is positive
as compared to the initial charge and penalty when attitude is poor. “The
word on the yard,” claimed one inmate, “is that Cap[tain Pulver] likes for
you to be a man, so be a man, and be respectful.”188

185

In prison, privileges are the most important item of preservation for inmates. When an inmate is sent
to the disciplinary unit, Unit 8, they forfeit, or have seriously circumscribed, certain privileges that they
previously enjoyed. DOC 303.69 (adjustment segregation), DOC 303.70 (program segregation), and
DOC 303.71 (controlled segregation) each vary the following privileges allotted disciplined inmates:
visitation and telephone calls, correspondence, showers, special procedures, leaving cell, exercise, good
time allotted, observation, and time served allotted.
186
The use of bad language is strictly prohibited by the Wisconsin Disciplinary Code. According to
DOC 303.25, titled Disrespect, “any inmate who shows disrespect to any person is guilty . . . , whether
or not the subject of the offense is present [at the time]. Disrespect includes . . . derogatory or profane
writing, remarks or gestures, name-calling, yelling, [or] other acts made outside the formal complaint
process which are expressions of disrespect for authority.” “Disrespect is something we take very
seriously at Fox Lake,” claims Captain Pulver, “because it leads to so many other discipline problems.”
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Feb. 3,
2004).
187
After cursing during the hearing, this inmate was immediately ushered from the hearing room and
had a re-hearing scheduled for a different date. The re-hearing would include charges of disrespect
(DOC 303.25), lying about staff (DOC 303.271), disruptive conduct (DOC 303.28), and threats (DOC
303.16). Unfortunately, I was not able to attend the rehearing for scheduling conflicts. I did, however,
learn that this inmate was eventually transferred to a different facility because his erratic behavior posed
a threat to the safety of the institution.
188
Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (Feb. 3, 2004).

172

Southern California Interdisciplinary Law Journal

[Vol. 16:139

Case 82
Charge: Disruptive Conduct (303.28) and Disobeying Orders (303.24).
Security Director’s Recommendation: Minor Violations
Inmate Plea: Guilty (with a positive attitude)
Observation: This inmate was charged with questioning a guard regarding his
attitude towards the inmate. The Hearing Officer read the charges to the inmate and
gave him a chance to explain himself. The inmate claimed that he left his key in his
cell while he went to the bathroom. When he returned, his cellmate had left the
room and locked it. The inmate then proceeded to the guard and asked him to give
him his key or at least unlock the room. The guard refused. The inmate found his
cellmate, got the key, entered to take his items and left the area. When he returned to
the area later that day, he asked the guard, “do you have a problem with me? Why
wouldn’t you give me a key earlier?” The guard then issued the conduct report for
disrespect and disobeying orders. The disobeying orders charge was dismissed
during the hearing.
The Hearing Officer explained to the inmate that he cannot ask officers if they
“have a problem” with him. That is disrespect and he will, rightfully, be charged.
The inmate, who remained with a positive attitude, accepted the Hearing Officer’s
words of wisdom and smiled gracefully. Since the inmate had no major tickets, had
been locked up for two years, and only received one ticket in the past, he was
sentenced to fifteen days of twenty-four hour room confinement and sent back to his
unit.
Final Disposition: Fifteen days of twenty-four hour room confinement.
Evidence Relied On: Conduct Report and Inmate Testimony
Reason for Disposition: Inmate had a good record and a good attitude.
Length of Hearing: Five minutes.

2006]

How Law “Works” Behind Prison Walls

173

Case 92
Charge: Disrespect (303.25), Disruptive Conduct (303.28), Violation of Institutional
Rules and Procedures (303.63).
Security Director’s Recommendation: Major (waived Full Due Process Hearing)
Inmate Plea: Not Guilty
Observation: This hearing contrasted considerably with the one detailed above. In this
case the conduct report claims that the inmate was watching television and the
Sergeant on duty proscribed no talking during the show. The inmate made some
noise at which time the Sergeant told him to “stop.” The inmate responded to the
Sergeant, “just relax.” The inmate was taken to his cell at which time the Sergeant
informed the inmate that he was going to write a conduct report for his actions. The
inmate responded, “do whatever you gotta do guy.”
During the hearing the inmate denied the allegations of the conduct report. The
inmate claims that he was not watching television, but was instead talking with
some other inmates when the guard came over and shouted at him—to which he
responded, “relax.” When the guard told him he was getting a ticket, he told the
guard, “do what you gotta do.” He never admits to calling the guard, “guy.” The
Hearing Officer asked the inmate if he felt he was disrespectful. The inmate said,
“No, he doesn’t feel that he was being disrespectful, but only honest with the
guard.” The Hearing Officer informed the inmate that his actions were disrespectful
and that he does believe that he called the guard, “guy.” This inmate had a visible
negative disposition toward the Hearing Officer, the charges against him, and the
disciplinary hearing.
Final Disposition: Three days adjustment and thirty days disciplinary separation, then
back to a different unit.
Evidence Relied On: Conduct Report
Reason for Disposition: Negative Attitude
Length of Hearing: Seven minutes.

(iii)

Shedding Tears

Shedding tears was one approach to leniency not used by many
inmates, probably because it was not an attempt to gain favor from the
Hearing Officer. Instead, it was a real reaction to the situation. Whether it
was purposeful, or not, one inmate found sympathy from the Hearing
Officer because of his reaction to the disposition and penalty. His case is
presented below.

174

Southern California Interdisciplinary Law Journal

[Vol. 16:139

Case 37
Charge: Possession of Contraband–Miscellaneous (303.47), Possession, Manufacture
and Alteration of Illegal Weapons (303.45)
Security Director’s Recommendation: Major Violation (waived Full Due Process
Hearing)
Inmate Plea: Guilty on all Charges
Observation: This was a particularly interesting case. The inmate had only been
present at Fox Lake for a period of two months. In fact, this was his first time in
prison and he was having difficulty adjusting. In this case, the officer’s conduct
report read, “Inmate 454956 removed a razor blade from a disposable shaver and
put in a comb to make a weapon for himself.”
The Hearing Officer read the charges and the conduct report to the inmate, who
in response looked baffled by the charges. The inmate was even more shocked when
the Hearing Officer explained that the charges against him were very serious and
that he was going to spend some significant time in segregation. The Hearing
Officer then asked if the inmate had anything to say in his defense. The inmate
explained that it was all a misunderstanding. He needed to trim his beard, (the
inmate had a full beard), and he asked around if he could borrow someone’s electric
trimmer. He then explained that one of the elder inmates explained to him that he
would have to do an “old prison trick.” The elder instructed the inmate to take a
razor blade from his disposable shaver and put it in his comb. Then simply comb his
beard normally and the razor would trim his beard for him. The inmate explained
that is exactly what he did and that he was not trying to manufacture a weapon, but
was simply trying to keep himself groomed.189
The Hearing Officer told the inmate that his story sounded reasonable, but that
altering any item that could be used in the future as a weapon was serious, even if it
that was not his original intent. He then told the inmate that although he believed his
story, he could leave nothing to chance, he had to sentence him accordingly but
would make the sentence, in his opinion, light. Without deliberation, the hearing
officer sentenced the inmate to three days adjustment segregation, and thirty days
disciplinary separation. The inmate looked on in disbelief and asked “what did that
[sentence] mean?” It was explained that he would spend three days in solitary
segregation, and then another thirty days separated from the remainder of the
population. The inmate stared at the Hearing Officer and broke down in tears. He
cried profusely, and pleaded not to be punished so harshly. After gathering himself,
he was escorted to his segregation cell.
Final Disposition: Three days adjustment segregation and thirty days disciplinary
separation.
Evidence Relied On: Officer’s conduct report and the inmate’s testimony.
Reason for Disposition: Serious of the offense and length of time in prison.
Length of Hearing: Ten minutes.

189
An interesting dichotomy is worth noting here. If an inmate exhibits poor grooming (which includes
suitably cut hair) he can be charged with a rule violation under DOC 303.56. If an inmate manufactures
a weapon (which includes altering any item making suitable for use as a weapon) he can be charged
with a rule violation under DOC 303.45. A closer read of this inmate’s situation demonstrates that in an
effort to avoid one rule violation, he violated a more serious one, yet his punishment did not reflect
consideration of the special circumstance.

2006]

How Law “Works” Behind Prison Walls

175

At the conclusion of this hearing, the Hearing Officer Captain Pulver
stated, “I am worried about this guy.” Although this was his first time in
prison and his first rule violation, “the problem was that his conduct,
although seemingly innocent, amounted to a major violation—possession,
manufacture and alteration of weapons,” he stated.190 “I believed this guy,
but we have to take weapons manufacturing seriously around here, because
the first time we don’t, one of my men will get his face slashed.”191 Captain
Pulver noted that he “found the inmate’s reaction so shocking, that I am
going to refer that guy to psych[iatric] immediately.”192 He continued, “at
this rate, he won’t last long in here. Right now I consider him a suicide
risk.” When asked what more could he have done, he replied “my hands
were tied.”193 Since the inmate committed a major violation, Captain Pulver
noted that “I have to demonstrate the seriousness of it to him. Hopefully, he
will learn and not do it again. But, I must admit, this is one of those times
that I don’t like the rules.”194 The inmate was referred to the Wellness
Committee later that afternoon.
4. Appeal
The disciplinary hearing appeals process in Wisconsin, and as practiced
at Fox Lake, is paper-based. Unlike the hearings themselves, there are no
formal proceedings that require the presence of inmates, Hearing Officers,
witnesses, or staff advocates. Instead, all appeals are handled by the
Warden. The Warden has the power to issue one of the following as part of
his review:
1. Affirm the adjustment committee’s decision and sentence.
2. Modify the adjustment committee’s decision or sentence.
3. Reverse the adjustment committee’s decision, in whole or in part.
4. Return the case to the adjustment committee for further consideration
to complete or correct the record.

In all cases, the warden’s decision is final regarding the sufficiency of the
evidence. If an inmate, wishes to appeal procedural errors in the hearing he
must utilize the Inmate Complaint Review System (“ICRS”) under DOC
Section 310.08 (3)—Scope of Complaint Review System.
190

Informal comments from Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (May 4,
2004).
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (May 4,
2004).
192
A Wellness Committee was held on May 4, 2004, during which time Capt. Pulver referred inmate
#454956.
193
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (May 4,
2004).
194
The Wellness Committee was held on May 4, 2004 where the mental and physical health of the
inmates was discussed. Inmate 454956 was added to the list of clinical watch because of his crying
depression during the disciplinary hearing. The clinical psychiatrist stated that she would “visit him this
week.” The researcher was present during the Wellness Committee meeting.
191

176

Southern California Interdisciplinary Law Journal

[Vol. 16:139

After exhausting appeals on the sufficiency of the evidence under
either DOC Sections 303.75 or 303.76, “an inmate may use the ICRS to
challenge the procedure used by the adjustment committee or hearing
officer . . . .” In order to do so, the inmate must follow the procedures for
filing a complaint under DOC Section 310.09, which instructs that the
inmate must “file the complaint in writing ‘on forms supplied for that
purpose . . . [and b]e signed by the inmate.’”195 It is important to note that
in Wisconsin, an ICRS complaint cannot challenge the substance of the
decision reached by the disciplinary committee, but rather can only address
procedural problems involved in the inmate’s discipline.196
A number of inmates at Fox Lake never bother to file an appeal. “What
difference does it matter,” claims one inmate, “I did it [committed the
violation], so I have to be punished . . . plus [ ] Cap[tain Pulver] was
fair.”197 Some inmates, however, are not satisfied. They file appeals, but
interestingly, fail to adhere to the rules stipulated in the ICRS.
During 2004, 129 inmate appeals were filed utilizing the ICRS at Fox
Lake. Given that 1,852 hearings were conducted, the appeals rate (seven
percent) seems insignificant. What is significant, however, is the manner in
which the majority of complaints are grouped. A large majority of the 2004
appeals fell into one of three categories: (1) ineffective assistance of
counsel; (2) disagreement with the guilty decision; or, (3) disagreement
with the penalty—all “non-procedural issues” according to ICRS examiner
Tom Gozinske. Because most of these appeals fell outside the purview of
the guidelines set by the ICRS, they were easily dismissed. Despite,
however, the inmates’ access to the appellate rules set forth in DOC Section
310.08(3), it was apparent that inmates either failed to understand those
rules governing the process or they lacked respect for them. Either scenario
is problematic.
IV. A GENERAL ASSESSMENT OF WISCONSIN’S PRISON
DISCIPLINARY PROCEEDINGS: WHAT “WORKS”
Fox Lake serves as an important case study insofar as its disciplinary
system generally provides inmates with stronger procedural protections
than those required by the general common law. This section will
incorporate the Fox Lake observations into a more general discussion of
what “works” as it pertains to inmate discipline in Wisconsin. The
following areas will be considered: (1) written rules and regulations, (2)
impartiality of the adjustment committee, (3) provision for counsel
advocates, witnesses, and confrontation/cross-examination of adverse
witnesses, (4) evidentiary standards, and (5) appeals process.

195
196
197

WIS. ADMIN. CODE DOC § 310.09(1) (2003).
See Id.at § 310.08(3) (2003).
Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 5, 2004).

2006]

A.

How Law “Works” Behind Prison Walls

177

CLEARLY WRITTEN RULES AND REGULATIONS “WORK”

Since the disciplinary process begins with the promulgation and
application of law behind prison walls, the dissemination of law detailing
prohibited conduct is an important feature of the disciplinary process.
Although there has been limited legal discussion about whether inmates
have a right to be informed of institution rules and regulations prior to
being charged with a disciplinary violation, Fox Lake distributes such
information.198 It is crucial not only that those inmates receive notice of
what actions are proscribed, but the definitions of the acts must also be
sufficiently specific to convey a definite warning as to what actions will be
sanctioned. Overly general or vague regulations may result in the abuse of
discretion, or arbitrary rule enforcement by prison staff. While it is not
possible, nor desirable, to require complete exactitude in every disciplinary
rule that is promulgated, it is important that inmates have a reasonably clear
idea of how to conduct themselves if they wish to remain free of
disciplinary charges. Unfortunately, as one survey reports:
[P]rison officials, because of their intense pre-occupation with security,
sometimes lose their sense of judgment in adopting disciplinary rules.
Many prison disciplinary rules punish conduct which does not threaten
security of the prison and are not necessary for maintaining security and
order. Certainly, if an inmate commits an act which would constitute a
crime in the free world, or he jeopardizes the security of the institution or
the safety of inmates or staff, he should be appropriately punished . . .
however, prison disciplinary codes often transcend the criminal code,
regulating every aspect of the lives of inmates. They punish trivial,
innocuous conduct.199

Fox Lake does a thorough job of ensuring that its inmates are informed
of the nature and proceedings pertaining to the disciplinary process. Upon
entry into Fox Lake, each inmate receives a copy of Chapter 3 of the
Wisconsin Administrative Code, which details the possible violations and
procedures that an inmate may face while incarcerated.200 Also, each
inmate receives a copy of the Inmate Handbook (“Handbook”) which
places the disciplinary process in simple language. The purpose of this
approach, according to Warden Borgen, is to “ensure that the inmates are
well informed of the rules and regulations that regulate their incarceration
here at Fox Lake.”201 Fox Lake does a thorough job to reinforce the rules
198
How often this happens is impossible to tell. It does not appear that the adjustment committee will
recommend such action unless, as one of its office states, “an inmate is willing to give up information
equal to the seriousness of his bust.” While they may occasionally intervene at the point of appeals, they
do not seem to get involved in disposition of a case with the adjustment committee.
199
See Resource Center on Correctional Law and Legal Services, Survey of Prison Disciplinary
Practices and Procedures 9 (1974); William Babcock, Due Process in Prison Discipline Proceedings, 22
B.C. L. REV. 1009, 1015 (1981).
200
Informal interview with Captain Melvin Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 5,
2004).
201
Interview with Warden Tom Borgen, Fox Lake Corr. Inst., in Dodge County, Wis. (Sept. 2004).

178

Southern California Interdisciplinary Law Journal

[Vol. 16:139

contained in the disciplinary code and to ensure that inmates are aware of
those rules.
B.

AN IMPARTIAL HEARING TRIBUNAL “WORKS”

In many cases, the value of due process is either realized or
compromised during the course of a disciplinary hearing. Fairness and
impartiality are realized if the hearing is oriented towards fact-finding,
defined as the disinterested determination of an inmate’s innocence or guilt,
and the provision of a meaningful opportunity to present a defense. These
ideals are compromised if the hearing becomes merely a forum wherein the
main issue to resolve is what sanction to impose.
Wisconsin statute stipulates that the disciplinary committee must be
impartial, regardless of its composition.202 Impartiality is generally
interpreted to mean that no member of a tribunal conducting a hearing may
have investigated the charge, witnessed the incident, or have personal
knowledge of the material facts of the case.203 If a member of the tribunal
falls into one of these categories, he is disqualified from hearing the case.
Nonetheless, the extent to which disciplinary committees are, in fact,
impartial is compromised invariably by several factors: the very nature of
the closed prison setting, the feeling on the part of the committee members
that they are obliged to support fellow staffers in any conflict with an
inmate, and the predominant emphasis on what sanction to impose. These
factors are rooted in the social and organizational dynamics of a prison.
Disciplinary hearings at Fox Lake were obviously concerned with what
sanction to impose in those instances where the hearing officer found an
inmate guilty of an institutional infraction. In contrast to findings of an
earlier study,204 Fox Lake disciplinary hearings on the whole were not
concerned solely with final disposition. Instead, the majority of the
disciplinary charges referred to the hearing officer involved relatively
minor violations. Likewise, as many of the inmates who appeared at the
disciplinary hearing were charged with only one or two minor violations, a
large majority of the disciplinary hearings were routine, and did not involve
the presence of witnesses, counsel-advocates, or confrontation/crossexamination. It is reasonable to argue that where there is a commitment to
fact-finding and to the impartial evaluation of an inmate’s innocence or
guilt, this commitment should manifest in a certain percentage of not guilty
findings. This was the case at Fox Lake.
A small, but relevant, percentage of charges are dismissed against
inmates every year. Of the 3333 conduct reports issued at Fox Lake in
202
WIS. ADMIN. CODE DOC §303.82(2)(2003), “No person who has substantial involvement in an
incident, which is the subject of a hearing, may serve on the committee for that hearing.”
203
See Babcock, supra note 199, at 1055–60; Harvard Center for Criminal Justice, Judicial Intervention
in Prison Discipline, 63 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 200 (1972) for a good discussion of
the general issue of impartiality.
204
See Harvard Center for Criminal Justice, supra note 203, at 210–11; Flanagan, Discretion in the
Prison Justice System, 19 J. RES. CRIME & DELINQ. 216; Leo Carrol, HACKS, BLACKS AND CONS
(1979); Erik Olin Wright, THE POLITICS OF PUNISHMENT (1983).

2006]

How Law “Works” Behind Prison Walls

179

2004, 128 (four percent) resulted in dismissals. There are also occasions
where inmates are issued multiple violations on one ticket and some of
those charges may be dismissed. This occurred routinely during
observations at Fox Lake, (sixty partial dismissals were observed).
Findings of guilt were a rather routine matter. In most cases, this was
simply the product of the inmate admitting his guilt, and thus not
prolonging the hearing process, solely to avoid a harsh disposition. By the
time Fox Lake inmates appear before the adjustment committee, they are
presumed guilty, they know they cannot win their case, and thus opt for
doing what is necessary to achieve a light disposition. As one inmate put it,
“man, the cards are stacked against us, by the time we come in here we are
just trying to please [ ] Cap[tain Pulver] so we can get out of here and back
to the GP [general population] as soon as possible.”205
C.

ADVOCATES AND WITNESSES DO NOT “WORK”

If the value of due process is to be realized, (i.e., an inmate is to be
given a meaningful opportunity to present a defense), then safeguards that
are recognized to be of critical importance to an inmate facing disciplinary
action must, where warranted, be made available. Those safeguards include
advocate assistance and the right to present alibi witnesses.
There is clearly a need for inmate representation in disciplinary
proceedings involving serious, or major, infractions. This is due to the
increasing complexity of the procedural rules governing such proceedings,
the severity of the sanctions that may result, and the marked inability of
many inmates to adequately articulate and present their defense. It goes
without saying that permitting the accused to call witnesses and present
documentary evidence constitutes key ingredients in a meaningful defense.
Furthermore, it gives the accused the opportunity to corroborate his own
version of events, to prove an alibi defense, and in general to overcome his
captors’ suspicions.206 Not only is this opportunity a critical adjunct to the
right to make a statement on one’s behalf, but the testimony of third parties
may provide the disciplinary tribunal with corroborating details that enable
it to decide the case in an accurate and rational way.
Although Fox Lake permits inmate offenders to call witnesses to testify
on their behalf, the actual opportunity, and success in doing so, remains
limited. Captain Pulver explains that “in certain instances, an inmate’s
request for witnesses may be denied on the basis of one of three reasons:
(1) the testimony lacks relevance, (2) the testimony is repetitious, or (3) the
safety of the witness might be placed in jeopardy were he to appear.”207 He
continues, “in either case, the inmate’s rights take less precedence over the
safety of the institution.”208 These reasons are also frequently recognized by
205

Informal interview with inmate, Fox Lake Corr. Inst., in Dodge County, Wis. (May 5, 2004).
Babcock, supra note 199, at 1039.
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 5,
2004).
208
Id.
206
207

180

Southern California Interdisciplinary Law Journal

[Vol. 16:139

other sources as well.209 Although some case law subsequent to Wolff has
strengthened an inmate’s right to call witnesses,210 the courts generally
defer to the judgment of prison officials whenever a request for witnesses is
denied.211
When a witness is excluded from testifying at a disciplinary hearing, a
written response for the denial generally is not required. In Wisconsin,
however, a written response is provided. Fox Lake finds that providing
reasons are more than helpful. “Denials for inmate witnesses are always
recorded,” says Captain Pulver. “That way we try to show the inmate that
we are fair, and if the inmate eventually appeals, which they almost always
do, and it ever makes it to court, we are protected because we recorded our
actions.”212
Inmates do not have any rights whatsoever to confront and cross
examine adverse witnesses. Nor do prison officials have to record their
reasons for denying such a request. In adversarial proceedings, however,
where the facts in question are contested and where governmental action
may have an individual outcome, confrontation and cross-examination have
traditionally been considered “one of the immutable principles of our
jurisprudence.”213 It is an important procedural tool for resolving disputed
facts, checking faulty memories or mistakes of identity, and for reducing
the “potential for abuse of the disciplinary process by persons motivated by
malice, vindictiveness, intolerance, prejudice or jealousy,” [citation
omitted], whether these be other inmates seeking revenge or prison guards
seeking to vindicate their otherwise absolute power over the men under
their control.”214
Fox Lake does not provide inmates with the opportunity to confront
and cross-examine witnesses whose testimony is adverse to their cases.
Because of safety issues, inmates are allowed to present alibi witnesses, but
not cross-examine adverse witnesses against them. Rarely were adverse
witnesses required for any hearing. In the vast majority of cases, the
accuser is known to the inmate. He is the staff person who writes the
disciplinary charge. Although the right exists, there were no observed
instances where inmates chose to request the appearance of the Hearing
Officer who signed the conduct report. Especially in those types of cases,
experience has shown that providing inmates with this due process
guarantee has not undermined prison security, nor has it damaged relations

209

Resource Center on Correctional Law and Legal Services, supra note 199, at 22. As this survey
indicates, in most states, inmates trained as paralegals serve as advocates for the accused.
210
See Michele Hermann et al., Due Process in Prison Disciplinary Proceedings: Meyers v. Alldredge,
29 GUILD PRAC. 79, 87 (1970).
211
See Babcock, supra note 199, at 1066.
212
See Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr.
5, 2004).
213
See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149 (1951).
214
See Wolff, 418 U.S. at 585–86 (Marshall, J., dissenting).

2006]

How Law “Works” Behind Prison Walls

181

between the keeper and the kept; probably because it is seldom exercised
by the inmate.215
Some disciplinary cases at Fox Lake utilize adverse information
supplied by an anonymous inmate informant.216 In these instances, the
denial of confrontation and cross-examination are justified if it is clear to
the hearing committee that permitting it would create a risk of reprisal. On
the other hand, because denying this opportunity significantly reduces the
accused inmate’s ability to prepare a defense, and at the same time carries
the potentiality for seriously undermining due process, it is essential,
though not required, that the tribunal determine that the informant is
credible, and that his testimony and information are reliable.217 While it is
critical that all steps be taken to safeguard the identity of the informant, the
comment below is all too true in the prison setting:
No experienced penologist or inmate would seriously contend that the
identity of a staff or inmate witness is likely to remain a secret from the
accused for very long. The circumstances of any incident giving rise to
disciplinary proceedings necessarily limits the potential witnesses to those
present. In addition, prison ‘grapevines’ are much too effective to achieve
that degree of secrecy in most instances. Protection against possible
retaliation requires more than non-confrontation while its denial may well
result in injustice.218

D.

EVIDENTIARY STANDARDS “WORK”

There exists very little case law expressly addressing the issue of what
constitutes the burden of proof that must be satisfied prior to the imposition
of disciplinary sanctions. Few meaningful guidelines exist specifying what
type of evidence is necessary to sustain a finding of guilt. While it is
apparent that evidentiary requirements directly impact disciplinary
outcomes, to date, the quantum of proof necessary to establish the guilt of
an inmate offender is a “preponderance of the evidence,” or “substantial
evidence.”219 Hence, in most jurisdictions or prisons, including Fox Lake,
the de facto level of evidence that is considered sufficient to send an inmate
to disciplinary segregation or to remove earned good-time is quite low. In
fact, generally, the disciplinary report and the results of an investigation

215

Babcock, supra note 199, at 1071–73 (reporting that at least thirty jurisdictions allow “the accused or
his representative to question either all witnesses who appear at the hearing, or at least the charging
officer”). Written statements from confidential informants are more often than not taken in lieu of direct
testimony.
216
Ten hearings were observed where anonymous statements were taken from inmate informants.
217
Terrence Fleming, Comment, Noble Holdings as Empty Promises: Minimum Due Process at Prison
Disciplinary Hearings, 7 NEW ENG. J. ON PRISON L. 145, 154 (1981) [hereinafter Fleming, Noble
Holdings].
218
Fleming, Noble Holdings, supra note 217, at 172 (citing Murphy v. Wheaton, 381 F. Supp. 1252,
1258 (N.D. Ill. 1974)). I would concur with Fleming where he states that this may be done by
interviewing the confidential informant on camera, and by permitting the accused to submit questions to
be asked of the informant. Id. at 170.
219
Murphy v. Wheaton, 381 F. Supp. 1252, 1258 (N.D. Ill. 1974).

182

Southern California Interdisciplinary Law Journal

[Vol. 16:139

into the incident are the only evidentiary ingredients that form the basis for
disciplinary conviction.220
A written record of the proceeding is of value to subsequent
administrative or judicial review. The actual substance of what is recorded,
however, varies considerably. While some states require “a complete report
of the initial incident, a summary of the evidence presented at the hearing,
the actual decision, and the reasons for those decisions,”221 Fox Lake
requires much more. “We document everything,” says Captain Pulver.222
“We don’t want to face the embarrassment of having one of our hearings
thrown out [by the courts] because we did not provide sufficient
documentation for our decision.”223 One study supports Captain Pulver’s
trepidations. “Disciplinary boards generally provide insufficient reasons in
their written statements to explain their verdicts, ” concludes the Resource
Center on Correctional Law and Legal Services.224 Fox Lake instead tries
to avoid the complications, usually arising under judicial review of the
hearing, that follow an incomplete or inaccurate record of the proceedings
by utilizing a substantial check-list that safeguards against improper
documentation.225
E.

APPEALS DO NOT “WORK”

There exists no relevant case law that mandates that an inmate be given
a chance to appeal an adverse disciplinary decision. Yet, at the institutional
level, administrative mechanisms for reviewing inmate appeals contribute
greatly to impartiality and fairness in the disciplinary hearing process.
Additionally, appeals uncover factual errors and identify potential trouble
spots in the adjudication of cases so that remedial action may be taken. As
noted earlier, the need for a complete record of the hearing is obvious.
Independent of the courts, Fox Lake utilizes specific procedures that
enable inmates to appeal disciplinary convictions.226 While some states
specify that appeals are automatic, Fox Lake has a series of steps that the
inmate must undertake to file a successful appeal.227 The inmate must not
only file all appeals through the Inmate Complaint Review process, but the
appeal must be on the proper basis; either factual or procedural, depending
on the classification of the rule violation.228 Regardless of the basis for the
appeal, it is usually reviewed by a higher level prison administrator, which
220
Kenneth Meyers & John Rabiej, Burden of Proof and the Standard of Judicial Review in Prison
Disciplinary Hearings Involving Decisions Predicated Upon Uncorroborated Hearsay Evidence, 4 SO.
ILL. U. L.J. 535, 537 (1979).
221
Babcock, supra note 199.
222
Informal interview with Captain Mel Pulver, Fox Lake Corr. Inst., in Dodge County, Wis. (Apr. 6,
2005).
223
Id.
224
Resource Center on Correctional Law and Legal Services, supra note 199, at 26.
225
At the time of this writing, the checklist referred to above is being edited by ICE Tom Gozinske to
ensure that it complies with proper legal and institutional standards for full documentation of all
disciplinary hearings. It is unavailable for reproduction at this time.
226
WIS. ADMIN. CODE DOC §§ 303.75(6) 303.76(7) (2003).
227
Id.
228
Id.

2006]

How Law “Works” Behind Prison Walls

183

at Fox Lake is the Warden.229 Nevertheless, if criteria are not available to
govern the review, or the disciplinary penalties are suspended pending final
disposition of the case, the appeals process is quickly reduced to form over
substance.
V.

CONCLUSION

What do we learn regarding how law “works” behind prison walls
based on our experience with prison disciplinary practices and procedures
at Fox Lake? Perhaps the most discernable change fostered by law,
encompassing both administrative rules and case law, is that at Fox Lake
the disciplinary system is, in fact, a system. Although there still exists
notable limitations associated with what actually “works” to make the
disciplinary process at Fox Lake in particular, and Wisconsin in general, a
fair one, there is a shift in balance of power between the keeper and kept,
both symbolic and real. Prisoners have certain due process rights which
prison officials are obliged to respect.230 An inmate’s guilt may no longer
be taken for granted. Rather, real proof that the inmate committed an
institutional infraction must be provided. This places some checks on the
exercises of official discretion, while simultaneously requiring a modicum
of accountability for the decisions that are made.231 To their consternation,
staff, especially prison guards, now find that poorly written or vaguely
worded disciplinary reports may result in either a finding of not guilty or a
dismissal of the charge against the inmate.
It is important to note that law does not directly challenge the
legitimacy of the prison’s power structure. Nor does it challenge a prison
official’s use of discretion to maintain institutional order and control.
Rather, it challenges arbitrary applications of power along with the exercise
of discretion in the absence of accountability. Law, as it is written, requires
prison officials to follow a sequence of legitimated steps before sanctioning
an inmate for misconduct. Legality mandates the creation of an
adjudicatory system which is designed, theoretically, to provide inmate
offenders with fair and impartial treatment. This is the main value not only
of formal prison rules, but also of due process law. How this is so will be
shown using Fox Lake’s disciplinary system as illustration.
Recall that a small number of inmates at Fox Lake received a major
hearing for rule violations. In these types of cases the disciplinary process
was quite formal and deliberate in nature. The Hearing Officer usually
granted an inmate’s request for witnesses, counsel advocates, and/or
229

Id.at §§ 303.75(6); 303.76(7)(b) (2003).
Wolff v. McDonnell, 418 U.S. 539 (1974) (disciplinary hearing are subject to the due process clause
of the Fifth and Fourteenth Amendment); Ponte v. Real, 471 U.S. 491 (1985) (due process does not
require that reasons for denying a witness must be given during administrative hearing); Superintendent
v. Hill, 472 U.S. 445 (1985) (only “some evidence” required to support finding of guilt); Cleavinger v.
Saxner, 474 U.S. 193 (1986) (hearing officers are not judges); Sandin v. Conner, 515 U.S. 472 (1995)
(prison rules do not create a state created liberty interest in the inmate).
231
See generally Anderson-el v. Cooke, 610 N.W.2d 821 (Wis. 2000) (prison officials are accountable
for following their own rules); Bergman v. McCaughtry, 564 N.W.2d 712 (Wis. 1997) (failure of prison
to follow its own rules invalidates prison disciplinary proceedings).
230

184

Southern California Interdisciplinary Law Journal

[Vol. 16:139

confrontation/cross-examination, (though usually less often than the former
two). Moreover, the accused was given ample opportunity to fully contest
the charge(s) in a hearing that occasionally lasted between fifteen and
twenty-five minutes. Before reaching a decision, the Hearing Officer
reviewed whatever evidence was available concerning the incident, usually
going over it together with the accused. While most of the inmates in these
cases were eventually found guilty, this was not always the case.
A case was presented in an earlier section involving a very serious
assault by one prisoner upon another.232 An inmate was subsequently
charged with the assault based on testimony supplied by the witnesses.
Given the seriousness of the incident and the presence of the witnesses, it
was apparent at the outset of the hearing that the onus was on the inmate to
prove that he was innocent. In the absence of law, this inmate would have
been given a summary hearing, and probably sanctioned severely. Instead,
he received a lengthy hearing, during which he was permitted the
assistance of a counsel-advocate, and the opportunity to call two of his own
rebuttal witnesses to corroborate his version of the events. The provision of
legality provided a series of evidential insertions that challenged the
veracity of the accusing witness. This case illustrates that if the procedural
safeguards associated with legality are permitted during the course of a
disciplinary hearing, they offer an opportunity for an inmate to demonstrate
his innocence, if he is, in fact, innocent.
The overall impact of law’s ability to mediate the tension between
fairness and arbitrariness inherent in the penal relationship, however, has
been blunted by several factors including: the volume of disciplinary
charges that are processed at any given time, the failure of inmate
advocates to properly carry out the function of their responsibilities, the
failure of alibi witnesses to be willing to assist other inmates, and an
appeals process that is either misguided or misunderstood. Recall that at
Fox Lake, during 2004, 3333 Conduct Reports were issued by prison
officials. A large number of them, however, 1481 to be exact, were
dismissed summarily, leaving only 1852 to be adjudicated. Of those
remaining cases, only 123 resulted in full due process hearings, leaving
1729 adjudicated as minor hearings. This means that a majority of inmates
prefer to have their hearing adjudicated without the full gambit of due
process; effectively waiving their right to advocate assistance and alibi
witnesses. This works well at Fox Lake, however, because given the
financial resources there, and quite possibly in other prisons, the prison
disciplinary system is not equipped to extend full due process on a
continuing basis to all inmates who receive formal hearings.
Ninety-three percent of the prisoners who appeared in disciplinary
hearings at Fox Lake did not request full due process hearings. In those
instances, where just two out of three safeguards were provided, the
hearings often turned into rather lengthy affairs, sometimes resulting in
postponements so that more witnesses could be called or additional
232

See Case 63, supra page 168.

2006]

How Law “Works” Behind Prison Walls

185

evidence gathered. If even a small number of those inmates who did not
request any of the aforementioned safeguards had actually done so, one of
two outcomes would have developed. Either their requests would have
been granted, leading to longer hearings and more delays, or, more likely,
their requests would have been denied with much more frequency. This
indicates that the amount of law “working” at any given time at Fox Lake
depended on the fact that a significant number of inmates did not bother to
request the full gambit of what the law allows. This, of course, is not
optimal because it rests on the proposition that the inmates will not
volitionally overload the system as opposed to a system that is always
prepared.233 But, the sheer number of charges processed is not the only
factor that compromises the effectiveness of how law “works.” Law’s
operation behind prison walls is neither self-enforcing, nor is it always
clear precisely what is required by a particular rule. Moreover, prison
officials have been accorded considerable discretion in choosing when to
provide important procedural protections. Thus, unless prison officials
exercise the discretion they are permitted fairly and impartially, the
disciplinary system is reduced to one of form over substance.234 Most
prison officials acknowledge that inmates are entitled to fair treatment
during the course of a disciplinary hearing. They may not be sanctioned
without due process.235 This attitude, however, is firmly rooted within and
tempered by a set of institutional assumptions regarding the centrality of
maintaining order and the presumed manipulative character of prison
inmates as opposed to what really matters—that prisoners have legal rights
guaranteed in law.236
Various commentators have constantly reminded us that the
fundamental feature of the prison’s social structure is the caste-like
233

Given the volume of disciplinary traffic:
The courts cannot effectively impose a ‘rule of law’ in the form of due process
administrative procedure . . . . Where due process can reasonably be required without
making a prison administratively inoperable, it will ultimately make little difference in how
the prison is treated. An occasional prisoner may escape the most serious punishment if
prison officials decide he does not merit the time and expense of a full hearing. When prison
officials consider a disciplinary case worth the effect, however, they will be able to use the
new procedure to impose the same punishment. Wolff, 418 U.S. at 556.

234

Jacobs alludes to this in commenting that:
[while] the courts might be able to impose a form of decision-making on the prison, they are
not in a position to overturn substantive decisions . . . . By necessity the courts must assume
the good faith of the administration. . . . unless the administration itself acts in good faith and
assume responsibility to supervise the fairness of the process inmates are essentially little
better off than before, and without a remedy, unless, of course, the administration completely
fails to follow the required procedures.

See also U.C.L.A. Program in Corrections Law, Judicial Intervention in Corrections: the California
Experience – An Empirical Study, 20 U.C.L.A. L. REV. 452 (1973).
See G. Sykes, THE SOCIETY OF CAPTIVES (1956) (for a classic sociological study of the ways in
which the power of prison officials is corrupted by the inmates they control).
236
David Fogel, Legal Rights of Prisoners, in LEGAL PROCESS AND CORRECTIONS 180 (Norman
Johnson & Leonard D. Savitz eds., 1982); Norman Johnson & Leonard D. Savitz, Inmate Social Worlds,
in LEGAL PROCESS AND CORRECTIONS 191 (Leonard D. Savitz eds., 1982).
235

186

Southern California Interdisciplinary Law Journal

[Vol. 16:139

distinction that is maintained between prisoners on the one hand, and
prison officials on the other.237 Although there is to be found some
occasional bantering between prisoners and prison guards, there is also a
good deal of open hostility, antagonism, and mutual mistrust. Moreover,
prison officials take it for granted that becoming too close to the inmates
they control will inevitably result in the “corruption of authority.”238 Thus,
social distance between keeper and kept is not only considered desirable, it
is enforced in view of the stereotyped character of the prison population.
But, inmates are on the receiving end of this “authority,” whether it be
law or official power. They occupy a role regarded as highly manipulative
and exploitive. They are viewed as predatory and ever willing, if given an
opportunity, to break institutional rules for personal gain, or simply to “beat
the system.”239 The consequence is that the inmate’s word is almost always
open to serious question. When these assumptions creep into the subjective
part of the disciplinary process, (i.e. advocate assistance, witness testimony,
alibi evidence), it becomes apparent that the law cannot and will not
“work” for inmates.
Another issue knocking at the door of how law “works” reflects both
institutional experience and commonsense. When an inmate receives a
disciplinary charge, he faces the possibility of punishment. Thereby, he has
a strong vested interest in seeking subversive means to avoid this outcome,
including, but not limited to, being dishonest. But, the charging officer has
a similar interest, although rooted in possibly other ideals and norms. He,
too, can subvert law’s operation by charging an inmate with a violation in
order to “teach him a lesson.”240 Which occurrence is the case at the
hearing is sometimes the inmate’s theory for the charges waged against
him. This theory becomes particularly influential when the hearing reduces
to a swearing contest between the reporting staff member and the accused
inmate. In such cases, the theory, unfortunately, dictates that credibility
resides with the former.
Clearly, inmates who receive disciplinary reports confront a serious
credibility problem in attempting to prove their innocence. Not only does
the accused inmate’s role within the prison community undermine the value
of his testimony, it also places limits on the value of calling inmate
witnesses whose word is similarly suspect. Add to that an advocate
assistant whose is completely ineffectual in performing his duties, and the
entire due process hearing is called into question. At Fox Lake, and
probably elsewhere, the testimony of the inmate witness is of dubious value
237

Thomas et al., supra note 4, at 38.
Sykes, supra note, 235.
C. Silberman, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 406 (1978).
240
Interview with Warden Tom Borgen, Fox Lake Corr. Inst., in Dodge County, Wis. (Sept. 2004).
Typically, the Warden at Fox Lake employs means to safeguard against this possibility. According to
Warden Borgen, “staff members, especially prison guards, who knowingly and volitionally lie on an
inmate and consequently subjects said inmate to disciplinary punishment would lose his job and his
pension if discovered. Therefore, in this sense it makes no good sense for a prison staff member to lie
on inmate.” Lying on an inmate, however, was one of the reasons that Officer Beckley was attacked as
noted in the opening scenes of this paper.
238
239

2006]

How Law “Works” Behind Prison Walls

187

because prison officials believe that informal pressures are exerted on such
witnesses to support the accused. No cases produced a not guilty verdict
based on another inmate’s witness testimony.
That fact that assumptions exert influence over the inmate disciplinary
process is not surprising. Other studies have reported similar findings.241
What these other studies fail to mark relevant, however, is that within the
prison setting these assumptions make sense. And it is because they make
sense that the mediating value of law behind prison walls is sometimes
compromised. As a consequence of these assumptions, the burden of
responsibility shifts to the accused inmate to show that he is not guilty of
violating institutional law. A task, in both my opinion and experience, that
is insurmountable. Further, since the significance of guilty assumptions are
so deeply rooted in the functioning of the penal institutions, the very
question regarding the validity of law’s capability to mediate that tension is
not only raised, but also answered. As I said earlier, law “works”—
sometimes.

241
See Harvard Center for Criminal Justice, supra note 203; Carrol, supra note 204; Wright, supra note
204.

 

 

The Habeas Citebook Ineffective Counsel Side
PLN Subscribe Now Ad 450x450
The Habeas Citebook Ineffective Counsel Side