DOC—PENAL CODE

You asked what the consequences are to inmates who assault other inmates or Department of Correction (DOC) staff.

The DOC's Code of Penal Discipline (CPD, Directive 9.5, effective January 1, 2008) classifies offenses into three categories: “A”, “B”, and “C”, with class “A” offenses the most serious. The code defines an “assault on a DOC employee” as (1) intentionally striking or attacking a DOC employee with or without an object or substance, or (2) behaving in such a reckless manner that one's actions cause a DOC employee to be struck. This definition appears to cover more than intentional assaulting a staff member by including reckless behavior that causes a staff member to be struck.

1. punitive segregation;

2. forfeiture of good time (this only applies to prisoners sentenced for offenses committed before October 1, 1994) and

3. two different penalties from a list of nine possible penalties such as loss of recreational privileges for up to 30 consecutive calendar days or loss of telephone privileges for up to 90 consecutive calendar days.

The code does not specify if all three must be given or can be given for a class A offense.

Any assault of a staff member is always classified as a Class A offense whether it was a Level 1 or a Level 2 assault. The only mention of Level 1 or Level 2 assaults in the code appears to be regarding the amount of good time an inmate can loose. The code allows the loss of up to all accumulated good time for a Level 1 assault and allows for loss of up to 180 days for a level 2 assault. As previously noted, inmates sentenced for offenses that occurred on of after October 1, 1994 can not earn good time credit. Thus, this aspect of the code's penalty structure only applies to inmates sentenced for offenses committed before that date.

Class “A” offenses include “assault,” “assault on a DOC employee,” and “fighting.” Under the code:

1. assault means physically attacking another person with or without the use of an object or substance,

2. assault on a DOC employee is (1) intentionally striking or attacking a DOC employee with or without an object or substance, or (2) behaving in such a reckless manner that one's actions cause a DOC employee to be struck; and

3. fighting means engaging in physical combat with another person (CPD § 12 C, D, and K).

The CPD authorizes specific punishments of inmates, based on the classification of offense (CPD, § 10). Inmates who commit class “A” offenses face:

● punitive segregation;

● forfeiture of good time (this only applies to prisoners sentenced for offenses committed before October 1, 1994) and

● two different penalties from a list of nine possible penalties (CPD § 10 A (1).

Commitment to punitive segregation must be for a specific time period. For inmates who assault a DOC employee, the maximum period is up to 30 days. Inmates convicted of this offense also must be reviewed for placement in administrative segregation before completing their time in punitive segregation. Administrative segregation involves placing an inmate in a restrictive housing unit that results in his segregation from other inmates but there is no time limit on this. (CPD § 9.4). Apparently an inmate is placed on administrative segregation for his safety or for the safety of staff and other inmates.

For inmates convicted of other class “A” offense the maximum time in punitive segregation is 15 days, unless he is a member of a security risk group, in which case the maximum is 20 days. The Code defines security risk group as a group of inmates, specifically designated by the commissioner, that poses a threat to the safety of staff, the unit or other inmates (CPD § 3M).

When punitive segregation is imposed for multiple offenses arising from a single incident, it may be applied either concurrently or consecutively. The maximum cumulative sentence cannot exceed the accumulation of two consecutive sanctions (CPD, § 10 B).

“Good time” credit allows an inmate to shorten his sentence and his parole eligibility date by good behavior.

This is the only section of the code that appears to distinguish a Level 1 assault from a Level 2 assault for purposes of determining the level of punishment. A Level 1 assault can result in a greater loss of good time than a Level 2 assault.

The maximum amount of good time an inmate may forfeit for a class “A” offense is 90 days. But the maximum is 180 days for any assault on a DOC employee and for any assault involving:

The amount of earned good time forfeited may be up to 360 days if the offense involves a dangerous instrument and also results in serious injury.

An inmate may completely forfeit all earned good time if the offense is assault on a DOC employee classified as a Level 1 assault under CN 6603 (see Classifications of Assault, below) (CPD, § 10 C(2))

Two of the following nine penalties may also be imposed for any class “A” offense including any assault of a DOC employee:

4. loss of commissary privileges for up to 90 consecutive calendar days, during which time the inmate may not place an order;

5. loss or modification of social visiting privileges up to 60 consecutive calendar days;

6. extra duty up to 24 hours which must be completed within one week of disposition;

8. loss of social correspondence privileges (both incoming and outgoing) for up to 60 consecutive calendar days; and

Confinement to quarters prohibits an inmate from such general population recreational activities as outside yard, dayroom, gymnasium and library; working; and attending school, except for inmates through the school year of their 21^st birthday. Loss of telephone or social correspondence privileges and loss or modification of social visiting privileges cannot be imposed concurrently.

Where an inmate has been found guilty for the third time in any six month period arising from separate incidents, the sanction may be taken from the next higher class of offense (i.e., a class “B” offense can be punished as a class “A” offense). If the third offense is a class “A” offense, then up to four penalties may be imposed and up to 120 days good time may be forfeited (CPD § 10 E).

Inmate assaults of DOC employees are either a Level 1 or Level 2 depending on how DOC classifies it. This classification is determined by a point system contained in DOC form CN 6603, Summary of Assault on Staff. The supervisor of the shift on which the assault occurred fills out this form and thus makes the determination as to whether it was Level 1 or Level 2 assault. The shift supervisor makes this determination based on the incident report and the investigation he or she conducts (DOC form CN 6601/1). The investigation can involve interviewing witnesses and reviewing any video evidence that may be available.

The DOC employee who first witnesses or first reports the incident files the Incident Report. All employees who respond to and witness an incident may also be required to submit a supplemental incident report regarding the employee's actions and observations. Typically it is the DOC employee who was the assault victim who files this report, but it also could be the shift supervisor if the victim is unable to do so because of injuries.

The point system to classify assault as either a Level 1 or a Level 2 established in DOC form CN 6603, “Summary of Assault on Staff” uses a scoring system to determine how severe an assault was. Assaults scoring 4 or more points are classified as Level 1. Assaults scoring fewer than 4 points are classified as Level 2.

Form CN 6603 has three sections for determining whether an assault is a Level 1 or a Level 2. They are “type of assault,” “weapon used,” and “medical treatment required.” Each section presents choices for the person filling it out to make.

Type of Assault. The “type of assault” section has two options. One is for an “intentional/direct attack” on a DOC staff member. This is given one point. The second type of assault is call “accidental/indirect/incidental” and is given 0 points. The form does not define either option but it gives the following examples for: “accidental/indirect/incidental:”

Weapon Involvement. The form's “weapon involvement” section gives the shift supervisor three options to choose from. The first is “actual homemade weapon used against staff.” It gives two examples-knife and club. This option is worth two points. The section option is “non-lethal object used as weapon.” It gives as an example body fluid substance. This option is worth one point. The third option under this section is “no weapon.” This option is worth zero points.

Medical Treatment. The “medical treatment required” section has four options to choose from. The first is “outside hospital, inpatient admission.” This is worth three points. The second option is “outside hospital or outpatient emergency treatment.” This is worth two points. The third option is “on-site treatment or personal physician.” This is given one point. The final option is “none.” This is given zero points.

Point Total. The shift supervisor completing the form then adds the points together to arrive at a total. A point total of one to three is a Level 2 assault. A point total of four or more is a Level 1 assault.

Based on the scoring system following are a few hypothetical examples of how the point system appears to work.

1. An officer is punched by an inmate but the officer does not need or receive any medical treatment. Because it is an intentional assault it would be given one point. But because no weapon or object was used and the officer required no treatment no additional points would be awarded. Thus it would be given a total of one point and be classified as a Level 2 assault.

● If the officer were treated on site it would be one additional point resulting in a total of two points, which would still make the assault a Class 2.

● If the officer went to an emergency for treatment it would be an additional two points. Once again this would seem to be a Class 2 assault because it would have a total of three points. (It is not clear if the officer received treatment on site and at an emergency room it would be considered an additional three points-one for on-site treatment and one for emergency room treatment or whether the emergency room treatment would be counted only.

● If the officer was admitted to a hospital it would be at least 4 points, a Class 1 assault –one point for an intentional assault and three for a hospital admission.

2. An officer is assaulted with an inmate's body fluid. Because the assault was intentional it would be given one point and because body fluid was used the assault would be given an additional two points. If the officer received any treatment on site or went to the emergency room for treatment and tests the point total would be up to either 4 or 5 and thus, this would be classified as a Level 1 assault. If no treatment were given the point total would be 3 and the assault would be classified as a Class 2. (It is my understanding that DOC has established protocols and procedures for dealing with employees who have been exposed to potentially infectious bodily fluids. This requires sending the employee to the nearest available DOC Health Care Unit for medical assessment and treatment if needed or if such a unit is not accessible, to the nearest hospital. Thus it appears that medical treatment of some kind is always provided if an employee comes in contact with an inmates bodily fluids.)

An officer is assaulted with a homemade knife and is treated at the scene. The assault would be given one point for being intentional, two points for the use of a knife and one point for the on-site medical treatment given. This totals four points and thus would be classified as a Level 1 assault.

Before a class “A” disciplinary report is delivered to an inmate housed in a designated housing area for the mentally ill or awaiting transfer to such a housing area, a qualified mental health professional must be asked to express an opinion on whether the behavior resulting in the report was caused by the mental illness and if disciplining the inmate would aggravate the condition. More information can be found in CPD § 10 I.

The Code allows for informal disposition of a violation when this is deemed sufficient to regulate an inmate's behavior. CPD § 17 details provisions for informal disposition.

If an inmate pleads guilty before a disciplinary hearing, the DOC investigator may accept the plan and dispose of the disciplinary report by imposing sanctions up to half the maximum allowed for punitive segregation and forfeiture of good time. But no such disposition is allowed in cases of assault on a DOC employee (CPD § 23).

If neither of the above occurs, the inmate is entitled to a hearing and the services of an advocate. Information on the hearing process can be found in CPD § 24 et seq..

The Code permits suspending certain disciplinary sentences. But a class “A” disciplinary sentence cannot be suspended (CPD § 10 F).

Members of security risk groups who commit an offense may face additional sanctions (CPD § 10 G).


October 10, 2008		2008-R-0552
DOC—PENAL CODE

By: George Coppolo, Chief Attorney Paul Frisman, Associate Analyst John Kasprak, Senior Attorney