Comments on proposed changes to Ohio’s inmate rules of conduct

Peter Wagner's commentary on and suggestions for changes to the proposed Ohio Inmate Rules of Conduct

by Peter Wagner, November 24, 2003

To:
James Guy
DRC Central Office, Legal Services Section
Ohio Department of Rehabilitation and Correction
1050 Freeway Drive North
Columbus, Ohio 43229

Re: Comments on Proposed Administrative Rules 5120-9-06, Inmate rules of conduct

Dear Mr. Guy:

I am Assistant Director of the Prison Policy Initiative, a Cincinnati based research and policy organization with an interest in the proposed 5120-9-06 inmate rules of conduct. My experience on this issue comes from my law school internships, where I worked on prison disciplinary hearing issues at Massachusetts Correctional Legal Services and at the Lewisburg Prison Project where I edited a national guide on the issue.

As the existing rules state more eloquently than I, the overarching purpose of a prison disciplinary procedure is to guide and correct prisoner behavior for future reintegration into free society and to ensure the orderly running of the institution. I am concerned that, by structure and omission, the proposed rules undermine the orderly running of your institutions.

Simple, clear rules and procedures are respected by both prisoners and staff and provide stability to a very tense environment. Rules that are confusing, duplicative, impossible to enforce, or violate obvious public policies undermine the value of a disciplinary system.

I have a number of suggestions for rules that can be combined, and I discuss several rules that are unnecessary or counterproductive, and then I have a very serious concern about the deletion of the policy statement for the disciplinary process.

Duplicative rules

The goal of this regulation is to give prisoners notice of the rules and guidance to staff in guiding prisoner behavior. Duplicative charges make the policy difficult for prisoners to digest and difficult for staff to implement. Because the policy does not explicitly prohibit multiple charges or multiple guilty findings arising from the same act, there is also the possibility of giving a prisoner a higher punishment than the actual act warranted.

For example, the proposed regulations make separate rule violations to “cause physical harm”, to “cause serious physical harm”, and to “cause physical harm with a weapon”. I assume the Department does not mean to suggest that another combination, causing serious physical harm with a weapon, would be acceptable behavior. This omission illustrates that proliferating rules for every imagined situation runs counter to the Department’s and Legislature’s intent to provide an orderly institution.

The most efficient procedure would be to combine duplicative rules and to create a specific regulatory instruction to hearing officers that wherever more than one rule covers the same act, the charges should be consolidated into the most serious charge. The hearing officer should determine the severity of the punishment in accordance with the severity of the act(s) and not with the technical number of rules violated.

Based upon a quick review, I found the following rules that could be easily combined, sometimes with edits as small as two words:

• Rules 3, 4 & 5. Causing or attempting to cause physical harm.
• Rules 6 & 7. Throwing material and bodily fluids
• Rules 8 & 9. Threats.
• Rules 11, 12, 14 & 24e Non-consensual sexual contact and conduct
• Rules 20, 21, 22 & 23. Refusal to follow orders
• Rules 28 & 34. Forged documents for escape or other purposes
• Rules 29, 30, 31, 32 & 33. Escape. (This is a very broad category ranging from the possession of contraband to leaving the facility without permission and many things in between. Arguably it would be useful, if only for the purposes of a prisoner’s institutional record to have different types of “escape” charges, however as currently constructed all of these are so vague that without the full facts behind the charge a parole or classification officer would be hard pressed to compare the relative severity of these 5 rules.)
• Rules 36, 37 & 38. Weapons
• Rules 39 & 40. Drugs

Unnecessary or counter-productive rules:

A number of other rules are unnecessary and counterproductive to the corrective intent of the policy. The inclusion of such rules dilutes the value of the legitimate rules and creates opportunities for arbitrary enforcement or the perception that the rules are being enforced arbitrarily.

Rule 13. Prohibiting consensual sex.

Consensual sex is a frequent occurrence in prison and does not amount to an “immediate and direct threat to the security or orderly operation of the institution.”[1] The policy provides no reason why consensual sex should be prohibited and I am not aware of any legitimate correctional need to do so that can not be separately addressed by other existing rules.

Such a rule is unenforceable, as Director Wilkinson admits.[2]

Enforcement of this rule also sets back efforts to reduce the spread of sexually-transmitted diseases including HIV. Currently, 6 to 20% of Ohio’s prisoners have Hepatitis C. Nine out of every 1,000 male prisoners in Ohio are known to have HIV, a rate 4.5 times higher than the male public at large.[3] This situation is already a public health catastrophe. Creating a rule that assumes that consensual sex does not or should not happen prevents the Department from fulfilling its obligation to reduce the transmission of disease. When the Akron Beacon Journal asked Director Wilkinson about distributing condoms to prisoners to stop the spread of HIV as is done in Vermont, he replied: “Absolutely not…. And it will never happen. To me, it would condone the possibility of inmates having sex.”[3] Changing this rule would free the Department to pursue alternative means of combating the spread of HIV and Hepatitis C in prison populations.

The final conceivable justification for such a rule could be to punish prisoner rape where evidence of non-consent is lacking for a finding of guilt under Rule 12 (non-consensual sex). But such an interpretation is both unrealistic and self-defeating. Given the very low “some evidence” standard of proof used by the Ohio Department, it is hard to imagine a situation where “some evidence” did not exist and yet a guilty finding would be warranted. If viewed as a “backup” rule to penalize prisoner rape, the rule is self-defeating because the prohibition would subject both rapist and victim to equal punishment. Punishing rape victims will reduce reporting and slow the state’s progress towards eliminating prisoner rape. With no legitimate justification for this rule, it should be removed.

Rule 14. Prohibiting masturbation and other acts.

Everybody masturbates. Perhaps, deprived of their usual partners, prisoners may masturbate more than the average person. Some commentators would argue that masturbation is healthy, but no credible argument can be made that masturbation in itself causes harm to anyone. Likewise, it is impossible to consider a ban on masturbation that would be consistently enforced. The presence of the rule against masturbation and any enforcement of it would undermine the legitimacy of the disciplinary system.

Of course, masturbation at inappropriate times or places, or other inappropriate sexual acts in front of others can be considered “conduct” and included in with Rule 11.

Rule 24e. Prohibiting engaging in or soliciting sexual acts with employees.

This rule should be removed as being duplicative in part, and contrary to public policy in the remaining part. Unwanted sexual advances from prisoners towards employees should be considered a part of Rule 11, non-consensual sexual conduct. The remaining portion of Rule 24e would cover consensual sexual conduct between prisoners and staff but its enforcement would undermine the legislature’s efforts to eliminate such activity.

There is currently an evolving national consensus to bar sexual contact between prisoners and staff. Recognizing the manipulative power of staff to demand sex from prisoners, the majority of state legislatures now treat these offenses as statutory rape. Ohio is a part of this national consensus, considering sexual penetration, regardless of consent, of a prisoner by staff to be sexual battery, a felony of the third degree.[4]

This rule penalizes prisoners with disciplinary sanctions for being statutorily raped and then reporting such a crime, and would give staff perpetrators additional leverage to ensure their prisoner-victim’s silence. This rule should be removed because it will have a contrary effect on the legislature’s attempts to prohibit this behavior by prison staff.

Rule 57 and the last clause in Rule 59: Prohibiting various forms of self-harm.

Rule 57 prohibits “self-mutilation, including tattooing” and Rule 59 includes a prohibition on acts that are a threat to “the acting inmate”. The Department is charged with protecting the health and safety of the prisoners in its care, but treating these dangerous practices as disciplinary problems is ill-advised and runs contrary to the Department’s mission.

The prohibition on tattooing devices and material (Rule 58) is an appropriate disciplinary strategy and should be retained in so far as these materials can be distinguished from their legitimate uses (ie. ball point pens still in their original form).

But the Department’s proposed Rule 57 would discourage recently tattooed prisoners from delaying medical treatment if an infection arises. The staph epidemic this summer should be illustrative of the problems caused by delayed treatment of infections. By analogy, the administrators at Pickaway and Belmont Correctional Institutions suspended medical co-payments during the staph infection outbreak this summer in order to remove any impediments on prisoners seeking medical care. Ideally, prisoners would not attempt to give themselves tattoos in un-sterile situations. In the mean time, the best solution is to ban tattooing tools, educate against tattooing and to be on the alert for the medical problems caused by it. Prohibiting tattooing runs contrary to this public policy.

Likewise, self-mutilation and self-harm (Rules 57 and 59) are acts that are medical emergencies rather than disciplinary problems. Even under the most cynical view, a prisoner that harms himself “for attention” is in fact in serious need for medical attention. Self-mutilation is often a warning sign of deeper mental problems. Furthermore, punishing mentally ill prisoners with reduced privileges or worse, segregation, increases the risk of self-harm or suicide.

According to Raymond Bonner, suicide prevention expert and chief psychologist at the Federal Correctional Institution at Allenwood, Pennsylvania, “Social and environmental isolation is never an appropriate consequence [of acts of self-harm or attempted suicide] as it undoubtedly worsens emotional state, hinders problem-solving and can increase the risk for life-threatening behavior.”[5]

Dr. Bonner’s quotation is in a chapter entitled Suicide and Self-Mutilation in a new report from the internationally well-respected organization Human Rights Watch. I have attached this chapter to my testimony to provide further evidence that these rules threatening punishment for self-mutilation and self-harm are contrary to any legislative mandate to protect prisoner health and safety.

Deletion of statement of guilding principles undermines policy

Perhaps most troubling is the change in the guiding principles for the disciplinary policy. The previous protective and helpful statement of principles has been gutted. These principles are necessary staff guidance in interpreting and implementing the rules and are necessary for prisoners to be able to understand and respect the rules. In my experience, I have found that arbitrariness is a direct threat to the orderly operation of a prison.

The current policy reads:

(H) Institutional rules: Rules governing the conduct of offenders and the consequences which may follow from a violation shall be printed and furnished to the inmates together with any explanations that may be necessary for their guidance. Rules shall be corrective, not abusive or punitive, in purpose. They shall be no more numerous or restrictive than is necessary to produce responsible and orderly conduct, and be related to valid institutional concerns.

(I) Discipline: Enforcement of institutional rules shall be for the purpose of developing patterns of behavior which will be of help to the inmate in his future adjustment in the free community, and the maintenance of order in the institution. Enforcement of institutional rules shall be rehabilitation oriented, and for the purpose of developing self-control and self-discipline. No action shall be taken against an inmate for the violation of a rule except in accordance with established disciplinary procedures. Use of correctional cells with deprivation of cell privileges as punishment is authorized but should be used only when clearly necessary.

(J) Restrictions on personal privileges: Disciplinary restrictions on clothing, bedding, mail, visitations, or the use of toilets, washbowls, and showers may be imposed only following an inmate’s abuse of such privileges or facilities or when such action is deemed necessary by the managing officer for the safety or security of the institution, or the well being of the inmate, and shall continue only as long as is absolutely necessary.

The equivalent text in the proposed regulation reads in its entirety:

(E) Institutional rules: rules governing the conduct of offenders and the consequences which may follow from a violation shall be published and made readily available to inmates. Rules shall be corrective, not abusive or punitive, in purpose.

Ohio is one of only two states to retain “Rehabilitation” in the name of its Department. Going beyond the name, Ohio is in many respects, a national leader on effective rehabilitation. But the wholesale deletion of these detailed requirements that punishment be proportional to the offense, with prior notice of the rules and for the rationale to be explained to the prisoner suggests that, at a policy level, the Department wishes to repeal, as it applies to prisoners, the entire principle of due process.

Given what I know about the leadership role that Ohio plays in corrections, I do not believe this regression was intentional and I strongly urge you to retain the original paragraphs in their entirety.

Thank you for the opportunity to present my views on this important matter of prison disciplinary procedures. If I can provide any additional information, please do not hesitate to contact me.

Sincerely,

Peter Wagner
Assistant Director

cc:
Mr. Bill Hills
Joint Committee on Agency Rule Review
77 S. High St., 8th Floor
Columbus, OH 43215

Enclosures:

Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness, Chapter XIII, Suicide and Self-Mutilation

Prison’s hidden cost, Inmates can take home AIDS risk, Beacon Journal, March 17, 2002

Footnotes:

[1] Paragraph A in the draft inmate rules of conduct (5120-9-06) states the purpose of the rules: “The disciplinary violations defined by this rule shall address acts that constitute an immediate and direct threat to the security or orderly operation of the institution, or to the safety of its staff, visitors and inmates, (including the inmate who has violated the rule,) as well as other violations of institutional or departmental rules and regulations.” Disregarding the circular logic in the final clause, it’s hard to imagine how a consensual activity can amount an immediate and direct threat to security, orderly operation or safety.

[2] “Ohio’s Wilkinson said both sex and tattooing happen in state prisons, but that their prevalence is exaggerated. Ohio punishes both harshly, but sex in particular is ‘very difficult to monitor,’ he said.” Prison’s hidden cost, Inmates can take home AIDS risk, Akron Beacon Journal, March 17, 2002, and attached to this comment for its excellent summary of the coming plague being cultured in Ohio’s prisons.

[3] Ibid.

[4] Custodial Sexual Misconduct §2907.3 Amnesty International, Custodial Sexual Misconduct, Ohio Factsheet, December 1999.

[5] Raymond Bonner, “Rethinking Suicide Prevention and Manipulative Behavior in Corrections,” Jail Suicide/Mental Health Update, vol. 10, no. 4 (Fall 2001), pp. 7-8. cited in Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness Chapter XIII, Suicide and Self-Mutilation.