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Bad Behavior: How prison disciplinary policies manufacture misconduct

Prison disciplinary systems are supposed to provide safety, security, and the orderly operation of corrections institutions. In some cases, they’re even supposed to aid in rehabilitation. However, our analysis of policies in all state prison systems and testimony from dozens of incarcerated people show these unfair and unaccountable systems are counterproductive, traumatizing, and lengthen prison stays.

By Brian Nam-Sonenstein and Nell Haney   Tweet this
January 2025
Press release
Reporter guide

Table of Contents

Dozens of rules

Severity classifications

Harsh sanctions with long-lasting consequences

Unfair & unaccountable “kangaroo courts”

Recommendations

Footnotes

Every prison system has a lengthy disciplinary policy laying out the rules incarcerated people must follow, as well as the procedures and punishments they’ll face if they don’t. If we think of prisons as miniature walled-off cities, then disciplinary systems can be understood as the quasi-legal system within them, governing the daily lives of incarcerated people. These policies are supposed to ensure safety, security, and order¹ by deterring and punishing misconduct. In practice, however, prison discipline is a system of petty tyranny with devastating, long-term consequences. Corrections officers enforce rules arbitrarily, often doling out punishments for mundane behaviors and survival strategies while interrupting access to programming and services that can make a meaningful difference in people’s lives. Harsh sanctions are handed down following unfair and unaccountable proceedings wherein it is nearly impossible to defend oneself from the charges.

The end result is a disciplinary system that plays a key role in keeping people in prison longer. Misconduct records discredit incarcerated people in parole and clemency proceedings, while traumatizing disciplinary punishments like solitary confinement increase the chances they’ll be arrested again someday in the future. These outcomes are never seen as failures of disciplinary systems; instead they are interpreted as personal failures to live up to the system’s expectations. This unquestioning belief in disciplinary systems makes it a foregone conclusion that corrections departments just need more leeway, more money, and “tools” like solitary confinement to force people into compliance.

In this report, we examine the landscape of disciplinary rules and punishments in all 50 state prison systems to get a “big picture” view of how they are designed and how they function as a central aspect of prison life — one that has been overlooked for too long. Using our collection of state prison disciplinary policies and building off our past work analyzing data on these systems and the impact of punishments like fines and fees, we explore the rules, procedures, and sanctions common to most systems. We also surveyed nearly four dozen incarcerated people to get their firsthand experiences because these systems are so opaque and cannot be well understood by reading policy alone. Throughout this report, we’ve included their insights in blockquotes like this:

Discipline is inconsistent, random, not transparent, capricious, and heavily driven by the egos of staff. Issues of inmate safety are typically ignored.

We found that there are profound similarities between problems with the “free world” criminal legal system and internal prison disciplinary systems. However, prison disciplinary systems are far more unfair and unaccountable. In both systems, minor offenses trigger the vast majority of cases. Both systems have procedures that lack fairness, but prison disciplinary processes are missing even the most basic constitutional protections afforded to defendants in the criminal legal system, like the right to legal representation. And both systems are organized around principles that are counterproductive and destabilizing, encouraging further misconduct and punishment instead of constructive and supportive interventions that help people thrive and succeed.

There is one key difference, however: disciplinary systems are entirely administrative, meaning they can be changed much more easily than the criminal legal system. We therefore conclude the report with recommendations that corrections departments can begin to implement immediately. We argue that, by reducing the number of rules, reducing the power of corrections officers to arbitrarily subject people to disciplinary action, adding due process protections, ending the harshest and most counterproductive sanctions, and reducing misconduct records’ negative impact on release decision making (such as parole and clemency), we can create ample opportunities to release more people and provide them with services and tools that can actually help them succeed in our communities.

Dozens of rules, many of which seem made to be broken

In the most recent national survey of people in state prison, more than half (53%) reported being written up or found guilty for at least one violation in the previous year.² Looking at the policy manuals of state corrections departments, it’s not hard to understand why. Each state has a lengthy disciplinary policy that includes dozens — sometimes hundreds — of strict rules that incarcerated people are expected to follow at all times, even when they aren’t made readily available.³ These rules cover an enormous range of conduct, most of which is not illegal outside of prisons. Many rules are so vague⁴ that they can conceivably apply to all kinds of circumstances. This includes redundant rules against rule-breaking, such as “violating a rule,” “disrupting the orderly operation of the institution,” or “disobeying an order.” Nearly every incarcerated person we heard from said these rules against rule-breaking were among the most common charges found on disciplinary reports.

There are two rules/charges that are alleged more than anything: A) “Disobeying a direct order” and B) “Out of place.” Those two charges are virtually unbeatable. I call them “the baby’s cry.” The baby cries when it can’t get its own way, it’s hungry, it’s tired, etc. The baby cries even when you can’t figure out why. Those charges are written for almost anything.

A favorite rule officers and staff use are abusive language and threats, not standing for count, disobeying orders, and unauthorized area. There is no oversight; if an officer or staff member doesn’t like you, they can write up a misconduct for the most frivolous offenses to get your parole taken along with numerous other consequences. Abusive language a lot of time is initiated by staff; if you speak back, they can twist whatever is said and write you up. Same as threatening staff and not standing for count. I’ve seen this abused, especially [6:00 AM] count: a lot of times you may oversleep and not hear the call, honestly, and you’re still written up. How can you be written up when you’re literally unconscious?! It’s not right. “Unauthorized area” can be so much as you stopping at your neighbors door to ask for a shot of coffee. These offenses are nitpicked daily, and result in a 6 months to a year hit when you see the [parole] board.

As we recently pointed out in the context of probation conditions, forcing people to adhere to a long list of rules enforced using the broad discretion of an officer adds stress to an already stressful situation and makes inadvertent and minor violations practically inevitable. Some states, like Nebraska and Connecticut, have around 50 rules while others, like West Virginia, Washington, and Nevada, have around 100 or more. Some rules are obviously appropriate, such as those prohibiting violence, but many more penalize arguably harmless behavior. Notably, not every rule on the books is enforced evenly (or at all).⁵ To give a sense of what rules are common in state prison systems, we sorted some of the most common rules into three categories: (1) rules prohibiting harm toward other people, (2) rules enforcing “good behavior,” and (3) rules suppressing dissent.⁶ In the table below, we’ve also included a column with examples of vague rules that give corrections officers wide latitude to punish people for almost anything. This is not a comprehensive list by any means, but the behaviors below are commonly penalized by state prison disciplinary systems:

Severity classifications: A veneer of proportionality on a system that punishes everything

Severity classifications apply proportionality to how different offenses are handled. The more severity levels there are, the thinking goes, the more nuance there can be in terms of mitigating or aggravating factors for rule violations. Lower-level infractions may result in warnings, reprimands, probation, “agreements” or informal resolutions, and other more lenient responses.⁷ More severe rulebreaking can lead to a different disciplinary procedure altogether,⁸ as well as more severe punishments, placement in more restrictive pre-hearing detention (sometimes called “administrative segregation” but best understood as solitary confinement), or referrals to law enforcement for criminal charges.

Our analysis shows that most states⁹ organize rules into at least three severity classification levels (low, medium, and high).¹⁰ Washington State has the most with eight levels, while Ohio has none at all.¹¹ Additionally, some states have de facto severity classifications: Florida and Illinois assign harsher punishments to certain rules but don’t actually spell out severity classifications in their policies.

While classification schemes seem to suggest that departments have sorted rules to ensure that more serious conduct receives a more serious response, a closer look quickly dispels this idea. Each state organizes its rules by severity differently, sometimes grouping together or equating conduct that is in no way comparable. Some examples include:

• Three states (Montana, New Mexico, and Wisconsin) with two-tier classification systems have policies that would punish consensual sex between incarcerated people at the highest severity level alongside offenses like homicide and inciting to riot.¹²
• Tennessee, which has a three-tier system, treats refusal to adequately participate at work or in programming as among the most serious offenses alongside escape.
• Indiana’s four-tier system equates unexcused absences from work with sexual harassment.
• Arkansas’ four-tier system classifies masturbation as among the most serious offenses.

Setting aside the vexing logic of how different states categorize violations, almost all states draw some kind of distinction between “major” and “minor” disciplinary infractions. Even at this most basic level, however, disciplinary systems deal mostly with “minor” violations. According to the 2016 Survey of Prison Inmates, only 9% of people disciplined in the last year (and less than 5% of state prison populations nationwide) received a “major” violation. This ratio mirrors that of criminal arrests: serious violent crimes account for less than 6% of annual arrests, yet law enforcement uses the specter of “violent crime” to justify further investment in tough-on-crime tactics and mass incarceration. Similarly, prison officials use the small portion of “major” disciplinary violations to defend torturous practices like solitary confinement as essential “tools” for maintaining order.¹³ Correctional departments will point to the most severe conduct to justify a disciplinary regime that, for the most part, punishes people severely for minor rule breaking.

In another parallel to the “free world,” rule breaking in prison is also unevenly policed and enforced: women are more likely to be written up than men (58% vs 53% in the 2016 Survey) and are more likely to receive “minor” violations (70% vs 57%). One incarcerated person gave examples of explicit racial and gender dynamics in rule enforcement: in women’s prisons, Black women in particular are frequently policed and punished for their hairstyles or for sharing menstrual products, and male officers frequently write women up for “their mouth” — in other words, for daring to speak back to officers. This corresponds with other research showing that women are more likely to be written up and disciplined for breaking prison rules, and receive disproportionate punishment for minor, subjective infractions like “disrespect.”

Harsh, punitive sanctions with long-lasting consequences

Nine out of ten people (90%) in prison who reported being written up for a violation in the past year in the 2016 Survey of Prison Inmates also reported receiving some form of disciplinary action. These harsh, punitive sanctions,¹⁴ which include solitary confinement, loss of good time credits, fines and fees, forced labor, and lost access to programming and services, are destabilizing and traumatizing. Fundamentally, even in the fairest circumstances, they respond to undesirable conduct by inflicting physical, mental, and financial pain on incarcerated people and their support networks. These punishments are costly in the long run as well: misconduct records make it harder for people to be released via clemency, parole, or early release through the accrual of time credits. Meanwhile, traumatizing people with sanctions like solitary confinement increases the chances they’ll be re-arrested in the future. When disciplinary systems are beyond reproach, incarcerated people shoulder all the blame for poor outcomes, and the “common sense” solution becomes ratcheting up destructive sanctions.

Most disciplinary write-ups are for minor rule violations, but the sanctions are often quite severe.

Discipline policies we reviewed included the following sanctions, listed in order of increasing levels of severity:

Warnings and reprimands: In some states, sanctions from disciplinary proceedings (usually for minor infractions) can be suspended with certain conditions. In some circumstances, there can be “agreements,” such as informal resolutions and mediation processes.

Fines and fees: At least 16 prison systems use monetary punishments as a form of discipline. In five jurisdictions, people can face triple-digit fines for a single disciplinary charge. Whether structured as tiered fines or flat “administrative” fees, they are an undue burden; prison is already one big financial sanction for those who are already on the lowest rungs of the economic ladder.¹⁵ When prisons impose these charges and help themselves to the funds in people’s prison accounts, incarcerated people are often left with little to no money for purchasing essential items and services that the prison doesn’t provide. As a result, their mental and physical health suffers, creating a more volatile environment inside.

Restrictions on services or “privileges:” Basic services and “privileges” like access to programming, communications, and recreation are crucial to the health, well-being, and flourishing of incarcerated people. Disciplinary systems are in direct conflict with these supportive interventions. Of people in prison who reported being disciplined in the 2016 Survey, roughly half (53%) lost “privileges” like commissary, visitation, or phone calls. Our analysis of prison disciplinary policies uncovered other examples of restrictions placed on basic day-to-day activities: people can lose access to microwaves, dayrooms/day halls, dining halls, movies and television, radio, state-issued tablets, gymnasium/recreation including free weights, yard, library, hobby work, school, jobs, and more.

Forced labor: Some states impose mandatory work assignments for people who are found to have committed misconduct. These assignments are typically unpaid even though incarcerated people are charged fines and fees for infractions.

Revoked good time credits: Incarcerated people can accrue “good time credits”¹⁶ which are essentially sentencing reductions earned for good behavior. Disciplinary systems commonly eat away at those gains, lengthening incarceration. One out of every eight incarcerated people (12%) lost sentence-reducing good time credits they had previously earned. In Wisconsin, major infractions can even include an extension of one’s release date beyond the loss of good time: this can include an extension of one’s mandatory release date,¹⁷ a suspension of extended supervision,¹⁸ and an extended release date due to confinement in segregation or lock-in.¹⁹

Solitary confinement: This form of torture is perhaps the most well-known sanction for disciplinary infractions. People in solitary confinement endure all the other punishments on top of being placed in isolation, including restrictions on services and privileges, loss of good time, and more. In the 2016 Survey of Prison Inmates, one-third (35%) of people who received disciplinary action for their most recent rule violation were ordered to solitary confinement.²⁰ The Survey also showed prisons rely heavily on solitary confinement for infractions that involve no physical harm, such as “verbal assault.” Even respondents who were written up for things falling into the category “other minor violations” ended up in solitary 17% of the time.

You get a paper you can fill out to request witnesses or representation. The hearing examiner never honors your request and will always give a mundane reason for why. The person who writes you up will sometimes appear in your hearing and literally banter with the hearing examiner. They will email in advance to come up with a sanction prior to even looking at the [misconduct report]. It’s wrong. They have so much power — literally your freedom, life in their hands. Then parole just gets what’s on paper, and gives you hit after hit. Next thing you know, you’re maxing out your sentence for the pettiest, most frivolous of reasons. They need body cameras and outside oversight, especially in rural areas. They’re all drinking buddies. How can we be fairly treated?

Misconduct records: Notably, misconduct records are themselves one of the longest-lasting and most consequential punishments of prison disciplinary systems. Like criminal records, misconduct records follow incarcerated people throughout their time behind bars, and they have far-reaching consequences that impact both conditions of confinement and the possibility of release. Misconduct records are often a major consideration for parole and clemency hearings,²¹ housing classification,²² and program eligibility.²³ When it comes to parole, for example, the existence of a misconduct record weighs very heavily against release, yet a clean record is ignored: researchers have found that, contrary to the expectations of incarcerated people, “rather than good behavior being a major consideration for release […] only misbehavior is taken into account and serves as a reason to deny parole.” Some policies, like Colorado’s, limit how misconduct records can affect access to work, academic programs, or mental health programs;²⁴ this kind of policy is very uncommon, but it provides an example of how a disciplinary system can function without some of its most counterproductive features.

Disciplinary processes are unfair and unaccountable “kangaroo courts”

Prison disciplinary procedures are loosely modeled after the criminal legal system,²⁵ but they leave out many of the rights and protections afforded to the accused in criminal proceedings. Much of the unfairness of disciplinary systems is evident in the policies themselves, but because these systems are so opaque, we turned to our survey of incarcerated people to learn more about how they are experienced.

Nearly every incarcerated person we spoke to said that people are “presumed guilty” from the start. Successfully defending oneself, or winning a reversal on appeal, is practically unheard of.²⁶ In many cases, people who try to file grievances for unfair disciplinary proceedings or who contest the findings in an appeal are targeted for retaliation.²⁷ Even when grievances, appeals, or court challenges are successful, the accused has usually already been subjected to punishments like solitary confinement or loss of services and programming for several weeks anyway. One respondent pointed out that those punishments are not credited toward future incidents, and those days spent in solitary confinement can still be reported to parole boards. In other words, incarcerated people get little-to-no reprieve even when they fend off misconduct allegations; they face immediate sanctions while the misconduct report is under review, and the record of those sanctions can be used against them in the future even if they were not found guilty of the charges.

Getting accused alone is enough to lose your job, be removed from school, be removed from your cell, be placed in [administrative segregation, aka solitary confinement], even before they’d see the official write-up. This (often unnecessary) disruption would often result in collateral damage to property, canteen, or personal relationships. Dismissal of charges would never result in fixing any of this.

Unless a staff member intervenes to have the charges dismissed or vouches for someone’s credibility, it’s unlikely for someone to get a favorable disposition of the charges. People are usually encouraged to plead guilty with an explanation in exchange for leniency. It is not uncommon, during a misconduct hearing, for the hearing examiner or unit manager to say, “I have to give you something,” or — when the matter is decided on credibility — “I can’t go against my officers.” On the rare occasion that someone does succeed, the misconduct report can be dismissed without prejudice to the officers’ discretion to be rewritten and submitted anew.

Disciplinary systems are frequently called “kangaroo courts” because of their basic lack of fairness and safeguards for the accused. Incarcerated people routinely feel railroaded into punishment by this system. To begin with, most of the incarcerated people we heard from said that corrections officers will “stack” as many charges as possible on a disciplinary report,²⁸ or choose charges that inflate the actual conduct, to both encourage guilty pleas and to increase the chances that at least some of the charges will stick,²⁹ similar to how prosecutors lay on excessive charges to coerce defendants into guilty pleas in the criminal legal system.

Far too often prisoners will be charged with every rule violation possible. And even if there is a minor infraction that could be used, more often than not the major infraction will be given instead. But the reason multiple are given at once is so something will stick.

[One rule enforced more than others] is refusing a direct order, because this is a “catch all” charge that can be applied to any direction given to an incarcerated individual. It is the most common rule we see on misbehavior reports here. No matter what the incident is (a fight, a movement violation, etc) the refusing a direct order charge is always thrown in there as well. Other rules that are enforced more than others: contraband, smuggling, unauthorized exchange. These charges are often combined to inflate the misbehavior report. For example, if an incarcerated individual is carrying food, a bar of soap, or any other small item for a friend and she gets searched, the misbehavior report will state she was carrying contraband, smuggling, and attempting to exchange it. The innocuous item (soap or food) which normally would not be “contraband” is considered contraband because it is being moved from one place to another. And it is an “unauthorized exchange” because even the attempt to exchange it is a violation of the charge.

If you plead guilty, they give fewer days on sanctions. If you fight the charge, they throw the book at you.

The people who prosecute misconduct allegations are not independent, external third parties but are colleagues and supervisors of the officers who bring the charges. As a result, corrections officers are regularly assumed to be truthful and credible, while incarcerated people are not. Incarcerated people are also prevented from obtaining facts and evidence that would be relevant to their defense: for instance, they may face movement restrictions that impede their collection of evidence. Additionally, corrections departments can and do refuse to provide security camera footage or audio pertaining to the incident at hand.³⁰ Several people told us that even when they do provide evidence, they face strict time windows and limitations to do so. Even then, their evidence is discounted by hearing officers who refuse to contradict their fellow officers.³¹ In almost every state, incarcerated people in disciplinary proceedings are not offered (in policy or in practice) representation by an attorney³² or the ability to cross-examine witnesses or to be judged by a jury of their peers — even when they are in a disciplinary process for acts that would be a crime outside of prison. Incarcerated people have no protection from unreasonable searches and there is immense pressure for the person to admit guilt to speed up the process and receive lesser punishments.

Prison disciplinary procedures are vaguely similar to criminal legal procedures, but they lack basic protections like the right to legal representation.

Prison disciplinary procedures are vaguely similar to criminal legal procedures, but they lack basic protections like the right to legal representation.

When rule violations break state or federal laws, incarcerated people can be subject to both disciplinary and criminal prosecution. Criminal prosecution is entirely separate and runs parallel to disciplinary proceedings. Corrections departments often refer the most serious misconduct that constitutes lawbreaking (like homicide) for criminal prosecution, but this is very often left up to the discretion of individual corrections officers and administrations. In other words, law breaking is not always referred for criminal prosecution. For example, several incarcerated people we heard from listed sexual assault and harassment as among the misconduct charges they saw enforced the least. That is to say, a lot of violence against incarcerated victims goes unaddressed by the disciplinary and criminal legal systems because of the choices of individual corrections officers. Additionally, because criminal prosecution can happen concurrently, it can effectively punish a person twice, lengthen their criminal record, and possibly extend their sentence to incarceration beyond what they would have faced if punished through the disciplinary system alone. Even if criminal prosecution is declined, dropped, or unsuccessful, prisons often reserve the right to punish the person administratively anyway.³³

There is no independent, unbiased oversight or watchdog agency. Starting with the writing of the report, to the hearing, and the appeal, it’s all based on “discretion” and the beliefs and bias of [correctional] employees. From the writing of the report, a prisoner is guilty. A hearing officer never goes against “my officer.” Unless another officer or employee actually provides testimony/evidence to the contrary. Appeals, even in the face of conflicting testimony (of prisoners) and regulatory or case-law holdings, are routinely denied, affirming the hearing officer’s finding of guilty (of something). Thereafter, one is left with limited time to petition the State Supreme Court. Four months or less.

To make matters worse, there is virtually no internal or external oversight of disciplinary practices. Our review of disciplinary systems found some states have more robust oversight policies than others, including audits, analyses, and reviews of cases and procedures. Notably, we are only talking about what’s written in policy — not whether or how those policies are carried out. In terms of external oversight, court review of misconduct rulings is difficult, limited, time-consuming, and often occurs after a person has already been subjected to punishment. To begin with, incarcerated people’s ability to litigate is hamstrung by the Prison Litigation Reform Act (PLRA). But even after overcoming PLRA hurdles, incarcerated people can only really sue if their punishment was extremely and unusually harsh, prolonged their sentence, or was in retaliation for something they have the right to do. And even then, judges usually defer to correctional authorities. In the case of revoked good time credits, corrections departments need only provide some form of due process and some evidence — rather than ensure full due process and evidence beyond a reasonable doubt — for the judge to uphold the revocation of credits. Judges also tend to consider most routine punishments as not harsh enough to merit court intervention; in other words, conditions have to be extraordinarily and unusually bad, which is a remarkable obstacle to overcome in settings where harsh treatment is the norm.

Recommendations

In my opinion, every prison needs a disciplinary process but it should be enforced evenly, consistently, and fairly. It should allow the individual the freedom of choice and independent decision making. Rules should be made as a way to help and manage a population, not as a way to punish them. Many rules are made as a knee-jerk reaction to one individual who misuses a privilege. One person misuses their toothbrush and now the prison does not allow toothbrushes. One person misuses the mail and now our facility doesn’t allow mail from family. Mass punishment is the go-to for prisons across the country and it’s no way to manage a human population.

For prisons to operate as intended, they need ways to deal with harmful and dangerous behavior. However, as we’ve noted, most infractions taking place in prisons today are minor. Their enforcement is often petty and arbitrary, and centers around the discretion of individual officers. They pull people into unfair, unaccountable processes designed for them to lose. They provide a way for prisons to punish people for coping with their conditions,³⁴ turning shared commissary food and medications like Suboxone into “contraband” when people are hungry or in need of healthcare. They take away the limited programs, services, and opportunities that actually benefit people while punishing them in ways that lengthen their sentences or increase the chances they’ll someday return.

Disciplinary and criminal legal systems share many of the same problems, as well as the overarching theory that safety can be achieved through punishment. Both systems emphasize punishment over repair, and stigma over transformation, and in doing so — whether through a criminal record or a misconduct record — heavily stack the deck in favor of failure for years into the future. Since these assumptions are fundamental to the design of incarceration and disciplinary systems, reforming disciplinary procedures can only go so far without addressing the flaws that are inextricable from the underlying theory. However, we can acknowledge that disciplinary reform is not going to “fix” prisons and mass incarceration while still fighting for changes to disciplinary powers that can make the daily lives of incarcerated people less oppressive and remove obstacles to their release. Doing so necessarily involves opening up disciplinary systems to criticism rather than seeing them as blameless systems that incarcerated people can only fail to live up to, not be failed by.

Based on our review of disciplinary policies, the available data showing how discipline is meted out in prison, and the testimonies of incarcerated people, we recommend correctional authorities immediately implement the following changes to their disciplinary systems:

Fewer misconduct rules — especially redundant and vague rules. Prison systems have lengthy lists of rules that incarcerated people are expected to adhere to at all times. While it could be argued that the most serious offenses should be “against prison rules,” many of the other rules could be addressed in other ways and do not need to be added to misconduct records. Additionally, many of these rules are so vague and redundant that they just create opportunities for an unfair and abusive system. A far more limited list of rules that focuses only on the most dangerous conduct would go a long way to reduce unnecessary involvement in disciplinary processes, making the system fairer from the start.

More constructive responses and an end to inhumane punishments, including ending solitary confinement. Even if prisons rely heavily on a rules-based system, not every response to rule breaking has to be harsh and punitive. There’s a lot of room for jurisdictions to introduce other, constructive means for preventing and responding to rule breaking. Doing so could even open up examination of other prison practices. Rather than harshly punishing drug use in an environment where little-to-no treatment options exist, prisons could reduce harm and actually provide people with the medical care they need. They could introduce more mediation between incarcerated people, as well as counseling and programming. Encouraging visitation and communication with people on the outside, rather than making it costly and difficult (or removing these “privileges” altogether), could also help reduce the likelihood of misconduct. In short, there’s a lot of room for experimenting with a needs-based service approach over one of deprivation.

Limit the influence of misconduct records on release decisions. Having a clean misconduct record has very little, if any, positive influence on release decisions, such as parole and clemency, but having any misconduct on one’s record weighs heavily against release. Furthermore, lost time credits and other punishments from disciplinary systems add up to keep people locked up for longer. When disciplinary processes are so arbitrary and unaccountable, misconduct records should mean less, and there’s a need to make them less of a deciding factor in release determinations (or at least to consider the proportionality of the misconduct, or to weigh good conduct more heavily).

Institute basic fairness, impartiality, and accountability. Even allowing for the most basic protections and procedures afforded to defendants in the criminal legal system would go a long way to making these systems more fair and accountable. Improving representation in disciplinary proceedings, making it easier to introduce and obtain witnesses and evidence, and reducing conflicts of interest by having prison workers run disciplinary processes would also help. This also extends to review processes; in addition to removing obstacles to court review, grievance processes should also be strengthened to make complaints actually actionable and to take the concerns of incarcerated people more seriously.

Improve transparency through regular reporting. It’s very difficult for the public to get a meaningful view into how these systems work. Some basic records are available through public records requests, but more could be done to provide lawmakers, journalists, advocates, researchers, and others with a clearer picture of who is subjected to disciplinary systems, where and what type of misconduct is taking place, and whether or not disciplinary systems are actually making a positive difference. In addition to reporting, audits by an external agency that has both the power and the will to enforce changes in the best interest of incarcerated people’s success is essential.

Subject fewer people to the harms of the disciplinary process by incarcerating fewer people. It’s bad enough that the criminal legal system routinely criminalizes and incarcerates people for low-level offenses, but disciplinary systems make that bad situation worse by making it harder for people to get out — and often subjecting them to additional harm and trauma that makes it more likely they’ll be re-arrested when they’re eventually released. This is especially true in crowded facilities: poor conditions instigate misconduct that can then be used as evidence that people should not be released, exacerbating overcrowding. One way to mitigate the harm of disciplinary processes and their role in keeping prisons full is to drastically reduce the number of people already in the system as well as the number of people being brought into the system.

Acknowledgements

All Prison Policy Initiative reports are collaborative endeavors, and this report is no different. The authors would particularly like to thank current staff members for their insights and guidance, as well as Professor Margo Schlanger at the University of Michigan who facilitated the research collaboration that helped make this report possible. We would also like to extend our gratitude to the dozens of incarcerated people who responded to our inquiries and shared their experiences with prison disciplinary systems. Lastly, we would like to thank our donors who make this work possible.

   

About the author

Brian Nam-Sonenstein is a Senior Editor and Researcher at the Prison Policy Initiative. He is the author of several publications, including a report on the misuse of “inmate benefit funds,” as well as briefings on the suppression of prison journalism and using decarceration to address understaffing in prisons. In addition to his work as a researcher, Brian plays a pivotal role in supporting other members of the Research Department in shaping the framing and messaging of their publications in a way that maximizes their impact and reach.

Nell Haney is a law student at the University of Michigan Law School. In Spring 2024, she worked with the Prison Policy Initiative through a “Law of Incarceration” colloquium taught by Margo Schlanger. For her project, Nell worked on researching, categorizing, and analyzing prison disciplinary policies across the country.

   

About the Prison Policy Initiative

The non-profit non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. Alongside their bedrock publication Mass Incarceration: The Whole Pie that helps the public more fully engage in criminal justice reform, the organization leads the nation’s fight to keep the prison system from exerting undue influence on the political process (a.k.a. prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video visitation industry.

   

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