Attachment P - AR 150-01 Code of Penal Discipline (COPD).pdf

ADMINISTRATIVE REGULATION

COLORADO DEPARTMENT OF CORRECTIONS

REGULATION NUMBER

150-01

PAGE NUMBER

CHAPTER: Disciplinary Guide

SUBJECT: Code of Penal Discipline (COPD)

RELATED STANDARDS: ACA Standards: 2-CO-3C-01, 5-

ACI-1B-23, 5-ACI-3C-01, 5-ACI-

3C-02, 5-ACI-3C-03, 5-ACI-3C-

04, 5-ACI-3C-06, 5-ACI-3C-07, 5-

ACI-3C-08, 5-ACI-3C-09, 5-ACI-

3C-10, 5-ACI-3C-11, 5-ACI-3C-

12, 5-ACI-3C-13, 5-ACI-3C-14, 5-

ACI-3C-15, 5-ACI-3C-16, 5-ACI-

3C-17, 5-ACI-3C-18, 5-ACI-3C-

19, 5-ACI-3C-20, 5-ACI-3C-21, 5-

ACI-3C-22, 5-ACI-3C-23, 5-ACI-

4A-09, 5-ACI-3D-08

EFFECTIVE DATE: November 15, 2023

SUPERSESSION: 02/01/23

Moses (André) Stancil

Executive Director OPR: DOP REVIEW MONTH: DECEMBER

I. POLICY

It is the policy of the Colorado Department of Corrections (DOC) to provide written rules of offender conduct which specify prohibited acts and outline the penalties which can be imposed for these violations, and to provide clear procedures for offender disciplinary actions

[2-CO-3C-01] [5-ACI-3C-01] [5-ACI-3C-02].

The written offender rules are established and maintained, in accordance with the following objectives:

A. Ensuring the protection, welfare and safety of the citizens of Colorado, corrections staff, visitors and offenders living and working within the institutions;

B. Encouraging offenders to make positive behavioral changes;

C. Requiring individual offender compliance with reasonable behavior standards and limitations;

D. Establishing and maintaining fair and equitable disciplinary procedures and practices consistent with case law, and

E. Considering gender responsive principles when applying disciplinary and accountability sanctions.

It is the policy of the DOC that all employees, contract workers, or volunteers who work with offenders will receive sufficient training so that they are thoroughly familiar with the rules of offender conduct, the rationale for the rules, and the sanctions available [5-ACI-3C-04].

II. PURPOSE

The purpose of this administrative regulation (AR) is to establish procedures, responsibilities, prohibitions, and sanctions that govern offender conduct and behavior in DOC facilities and those under contract with the DOC, and to establish procedural guidelines to assist corrections officials in regulating the conduct of offenders. When administering action(s) to regulate negative conduct for female offenders, considerations will be given to the unique risks and needs of female offenders through gender responsive principles.

III. DEFINITIONS

A. Affirmative Defense: A defense in which the offender introduces evidence, which, if found to be credible, will negate criminal or

CHAPTER SUBJECT AR # Page 2

Disciplinary Guide Code of Penal Discipline (COPD) 150-01

EFFECTIVE

11/15/23 civil liability, even if it is proven that the offender committed the alleged acts.

B. Alcohol: An intoxicant (ethyl alcohol or ethanol) found in beer, wine, and other liquors that is produced by the fermentation of yeast, sugars, and starches.

C. Attempt: An offender commits an attempt when, with intent to commit an offense, they engage in conduct that tends to effect the commission of such offense. It is an affirmative defense to the charge of attempt that the offender voluntarily abandoned their effort to commit the offense(s), prior to the discovery of their active participation in the offense(s) or before it is substantially completed.

The possible penalties for attempt are the same as the underlying offense.

D. Complicity: An offender may be charged, tried, and convicted of any offense based upon the conduct of another person if, with the intent that the offense be committed, they command, induce, encourage, procure, or aid the other to commit it. It is an affirmative defense to the charge of complicity that the offender, prior to the commission of the offense, voluntarily withdrew from any active participation in the offense. In any prosecution where the liability of the accused offender is based upon the conduct of another offender, it is no defense that the other offender has been found not guilty, or has not been prosecuted, or has been convicted of a different offense. The possible penalties for complicity are the same as the underlying offense.

E. Contraband: Any item that an employee, contract worker, volunteer, visitor, or offender is not specifically authorized to have in their possession; any item that has been altered and/or is being used for other than its intended purpose; any publication deemed as contraband pursuant to AR 300-26, Publications; any item(s) over the three cubic foot allowable personal property limit; any item listed in the Offender Visitor Consent to Search Authorization (AR Form 300-01B); any item listed in the Code of Penal Discipline;

any item listed on the administrative head’s “Declaration of Contraband”; and any item that may threaten or could potentially threaten the safety and security of a DOC facility, employees, contract workers, volunteers, offenders, or visitors, or any item listed as contraband in an administrative regulation.

F. Contract Worker: A person who provides services to the DOC under contract, special assignment, or informal agreement (e.g.

purchase order). A contract worker includes self-employed persons, sole proprietors, and persons employed by an employer in the private sector, another public entity, or by another agency of the state of Colorado.

G. Dangerous Contraband: A communication device, firearm, knife, bludgeon, or other weapon, device, instrument, material or substance, whether animate or inanimate, which is readily capable of causing or inducing fear of death or physical injury.

H. Dangerous Drugs and Paraphernalia: Alcohol; all controlled substances as listed under Schedules I-V of the Colorado Revised

Statutes (CRS 18-18-102), 18-8-203(2) through 18-18-207(2); marijuana and marijuana concentrates including all parts of the plant cannabis sativa L; and any volatile substance inhaled, consumed or ingested for its mood-altering effect, including but not limited to, cleaning fluids, glue, lacquer, petroleum distillates and/or any drug controlled by regulations of federal or state law. This area will also include drug paraphernalia.

I. Date of Discovery: The date at which the disciplinary officer determined an offense has occurred and the identity of the offender to be charged. This is determined by the date that the disciplinary officer signs the “Notice of Charge(s).”

J. Disciplinary Officer: A person, or persons, designated by the administrative head, whose duty it will be to present the DOC’s case at disciplinary proceedings. Where feasible, this person will be at or above the level of correctional officer III, liaison III, community parole officer or the equivalent.

K. Employee: Someone who occupies a classified, full or part-time position in the State Personnel System (including management and non-classified positions) in which the Department has affect over pay, tenure, and status.

L. Executive Director: Executive director of the Colorado Department of Corrections.

M. Hearing Board: A three-member board comprised of DOC employees and/or contract workers, of which one must be at or above the

CHAPTER SUBJECT AR # Page 3 level of correctional officer III, liaison III or the equivalent who serves as chairperson of the hearing board.

N. Hearing Officer and Chairperson of the Hearing Board: Any DOC employee or contract worker, at or above the level of correctional officer III, liaison III, or the equivalent, designated by the executive director, or designee, as eligible to be a hearing officer or chairperson of the hearing board for the purpose of administering this code.

O. Housing Restriction: A disciplinary sanction that may be imposed only after a specific disciplinary hearing has taken place, in accordance with AR 150-01, Code of Penal Discipline. Housing restriction sanction time will be served during the offender’s time off from work or program assignments.

P. Housing Supervisor/Shift Leader: The correctional officer III or IV assigned to supervision of a housing unit or shift.

Q. Immediate Accountability Resolution (IAR): An alternative to formal Code of Penal Discipline processes that include consequences imposed on an offender to address designated rule violations.

R. Intentionally: A person acts intentionally with respect to a result or to conduct described by this code when the person’s conscious objective is to cause that result or to engage in that conduct.

S. Portable Electronic Communication or Media Storage Devices: Devices include, but are not limited to: cellular telephones; cloned cellular telephones; public, private, or family-style radios; pagers; personal digital assistants; secure digital (SD) cards or other media storage devices; any other device capable of transmitting or intercepting cellular or radio signals between providers and users of telecommunication and data services; and portable computers, as defined in CRS 18-8-204(2)(n).

T. Possess: To knowingly exercise physical control over an object. Knowledge will be conclusively presumed when an object is found on an offender’s person, in their clothing, or in plain view. Knowledge will be rebuttably presumed when an object is found anywhere in an offender’s cell or in a place where it is likely that only the offender could have placed it. This presumption may be rebutted by evidence that the offender was not responsible for the object’s presence. Offenders are presumed responsible for items found in a common area in a multi-occupancy cell. The presumption of responsibility can be rebutted if proven otherwise.

U. Preponderance of Evidence: The evidence presented that is more likely than not to be true or correct

V. Probated Sanctions: Sanctions imposed by the hearing officer or board, which are withheld until a specified time but no greater than

90 days.

W. Public Official: An elected or appointed official of any local, state, or federal entity.

X. Reckless: An offender’s conduct is reckless if they perform an act or fail to perform an act, which it is their duty to do, knowing or having reason to know facts that would lead a reasonable person to realize, not only that their conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make their conduct negligent.

Y. Residential Treatment Program (RTP): A program which provides offenders with a mental health disorder and/or intellectual and developmental treatment needs individual and group therapy, educational programs, recreational therapy and recreational activities to promote their program success and successful transition into the community or into a general population setting.

Z. Restrictive Housing: A placement that requires an offender to be confined to a cell for at least 22 hours per day.

AA. Security Devices: Locks, locking systems, windows, vents, telephones, computers, electronic devices, wrist bands, fire and smoke detection and suppression equipment, or other similar items that are used for security/safety.

BB. Self Defense: A person is justified to defend themselves from what they reasonably believe to be the use or imminent use of physical force. Continuing to fight beyond what is reasonable to defend oneself, or re-engaging once the combatants have separated

CHAPTER SUBJECT AR # Page 4 can make the claim of self-defense invalid.

CC. Serious Bodily Injury Bodily injury that either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part or organ of the body; or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.

DD. Serious Mental Illness: The current diagnosis of any of the following DSM diagnoses accompanied by the P code qualifier of ‘M’ or

‘O’, denoting the presence of a major mental disorder: schizophrenia, schizoaffective disorder, delusional disorder, schizophreniform disorder, brief psychotic disorder, substance-induced psychotic disorder (excluding intoxication and withdrawal), unspecified schizophrenia spectrum and other psychotic disorder (previously psychotic disorder not otherwise specified), major depressive disorders, and bipolar disorders. These offenders, regardless of diagnosis, demonstrate a high level of mental health needs based upon acute symptom severity and/or high resource demands, which demonstrate significant impairment in their ability to function in the community or within the correctional environment.

EE. Significant Functional Impairment: The demonstration of difficulty functioning in the community as evidenced by engaging in deliberate self-harming behaviors, such as cutting, self-mutilation, ingestion or insertion of a foreign body, head banging, drug overdose, hanging, biting, or jumping from heights with intent to cause self-harm; demonstrating difficulty maintaining activities of daily living and/or a pervasive pattern of dysfunctional, bizarre, or disruptive social interaction as a consequence of an underlying mental disorder. This includes offenders with psychological (P) codes 4 and 5 with any qualifier and offenders with intellectual and developmental needs (ID) codes 4 and 5 with any qualifier.

FF. Supervising Officer: The officer who will oversee the extra duty work done by the offender being disciplined.

GG. Victim: As defined in 24-4.1-302(5), CRS, “any natural person against whom any crime has been perpetrated or attempted, unless the person is accountable for the crime or a crime arising from the same conduct or plan as crime is defined under the laws of this state or of the United States, or, if such person is deceased or incapacitated, the person’s spouse, parent, child, sibling, grandparent, grandchild, significant other, or other lawful representative”.

HH. Victim Designee: The victim’s spouse, parent, child, sibling, grandparent, significant other, or other lawful representative.

II. Volunteer: A person approved by the respective administrative head/designee to provide services without compensation from the

DOC for correctional programs.

JJ. Working Days: Monday through Friday, excluding state recognized holidays.

IV. PROCEDURES

A. PUBLICATION: Amendments and/or supplements to this policy may be issued at any time by the executive director of the DOC as provided herein. Notice of any amendment and/or supplement to this policy will be provided to offenders in a manner determined by the facility administrative head. No amendments and/or supplements to this policy will become effective sooner than 15 days after publication and notice to the offender population.

B. JURISDICTION

1. Offenders Subject to the Code of Penal Discipline: All offenders in the custody of the executive director of the DOC will be subject to the code of penal discipline. Violations of the code of penal discipline may be punishable as disciplinary violations.

2. Criminal Prosecution: In addition to being subject to the code of penal discipline, all offenders in the custody of the executive director of the DOC are subject to all laws of the United States and the state of Colorado. If a violation of the code of penal

CHAPTER SUBJECT AR # Page 5 discipline would also be a violation of a federal, state, or local law, an offender may be subject to the provisions of the code of penal discipline, as well as to the applicable law. When an offender allegedly commits an act covered by criminal law, the case will be referred to the appropriate court or law enforcement officials for consideration for criminal prosecution [5-ACI-

3C-06]. Pursuant to C.R.S. 17-1-103.8(2)(a), the case will first be referred to the Office of the Inspector General (OIG). The

OIG will pursue case filings and follow-up as necessary.

C. DISPOSITION: Class I offenses require a formal hearing. Class II offenses require a formal hearing unless managed through the

Immediate Accountability Resolution Process (IAR) or the offender waives their right to a hearing.

D. CLASS I OFFENSES:

(1) Murder: An offender commits this offense when they intentionally cause the death of another person.

If the evidence presented is insufficient to sustain a conviction on a charge of Murder, the hearing officer or board will have the discretion to modify the charge to convict the offender of the offense of Manslaughter or Assault, if such conviction is justified by the evidence presented.

Self-defense may be a defense to a charge of Murder.

(2) Manslaughter: An offender commits this offense when they recklessly cause the death of another person, or without premeditation, upon a sudden heat of passion caused by a serious and highly provoking act affecting the offender sufficiently to excite an irresistible passion in a reasonable person, causes the death of another person.

If the evidence presented is insufficient to sustain a conviction on a charge of Manslaughter, the hearing officer or board will have the discretion to modify the charge to convict the offender of the offense of Assault, if such conviction is justified by the evidence presented.

Self-defense may be a defense to a charge of Manslaughter.

(3) Kidnapping: An offender commits this offense when they seize; or carry any person from one place to another; or holds a person without their consent with the intent thereby to force the victim or any other person to make any concessions or give up anything of value in order to secure the release of the person under the offender’s actual or apparent control.

(4) Assault on Staff or Visitor: An offender commits this offense when they intentionally cause or intentionally set into motion a force which causes injury to any employee, contract worker, visitor or volunteer OR when they intentionally apply any physical force against an employee, contract worker, visitor, or volunteer, regardless of whether such force results in injury.

If the evidence presented is insufficient to sustain a conviction on a charge of Assault, the hearing officer or board will have the discretion to modify the charge and convict the offender of Unauthorized/Incidental Contact, if such conviction is justified by the evidence presented.

(5) Assault on Offender: An offender commits this offense when they intentionally cause or intentionally set into motion a force which causes injury to any other offender OR when they intentionally apply any physical force against any other offender, regardless of whether such force results in injury.

If the evidence presented is insufficient to sustain a conviction on a charge of Assault, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense of Fighting if such conviction is justified by the evidence presented.

Self-defense may be a defense to a charge of Assault on Offender.

CHAPTER SUBJECT AR # Page 6

(6) Fighting Class I: An offender commits this offense when they engage in a physical altercation including, but not limited to:

exchange of punches, strikes, shoves, kicks, or any offensive physical contact with another offender that involves the use of a weapon, causes bodily injury requiring medical treatment or requires a use of force to gain compliance.

Self-defense may be a defense to a charge of Fighting.

If the evidence presented is insufficient to sustain a conviction on a charge of Class I Fighting, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense Class II Fighting if such conviction is justified

(7) Escape with Force: An offender commits this offense when they, by force or threat of force, without proper authority remove themselves from the confines of the institution or from official custody while beyond the confines of the institution.

If the evidence presented is insufficient to sustain a conviction on a charge of Escape with Force, the hearing officer or board will have the discretion to modify the charge and to convict the offender of Escape without Force, if such conviction is justified

(8) Escape Without Force: An offender commits this offense when, without proper authority, they remove themselves from the confines of the institution or fails to return to official custody following temporary leave granted for a specific purpose and for a specified period of limited duration. The hearing officer or board will have the discretion of treating tardiness as Unauthorized

Absence, rather than Escape without Force, so long as the offender voluntarily returns from the temporary leave within four hours of their scheduled return time.

(9) Engaging in Riot: An offender commits this offense when they, with two or more additional offenders unite and act out in defiance displaying active aggression against prison officials, engage in a physical altercation with other offenders and/or in the destruction of facility property.

If the evidence is insufficient to sustain a conviction on a charge of Engaging in Riot, the hearing officer or board will have the discretion to modify the charge to convict the offender of the offense of Advocating or Creating Facility Disruption, if such conviction is justified by the evidence presented.

(10) Rape: An offender commits this offense when they use physical force or intimidation upon another person without the consent of the victim, for the purpose of oral, anal, or vaginal intercourse or penetration, however slightly, of the mouth, anus, or vagina by any animate or inanimate object and,

(a) They have impaired the power of the other person to apprise or control their conduct by administering or employing drugs, intoxicants, or similar means, or,

(b) They compel or induce the other person to submit by any misrepresentation such as bartering and extortion or threat of violence, or,

(c) The other person suffers from mental illness or functional impairment that is reasonably apparent or known to the accused offender, which, in fact, renders the other person incapable of understanding the nature of their conduct or being aware of the nature of the act committed, or,

(d) When the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.

If the evidence presented is insufficient to sustain a conviction on the charge of Rape, the hearing officer or board will have the discretion to modify the charge and to convict the offender of Sexual Assault, Sexual Harassment or Sexual Misconduct if such

(11) Arson: An offender commits this offense when they set fire to, burn, cause to be burned, or by the use of any explosive or combustible device, damage or destroy or causes to be damaged or destroyed, any structure or property.

CHAPTER SUBJECT AR # Page 7

(12) Robbery/Extortion: An offender commits this offense when they use or threaten the use of physical force or improper pressure upon another person for the purpose of:

(a) Preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking, or

(b) Compelling the owner of such property or another person to deliver or give up possession of the property.

If the evidence presented is insufficient to sustain a conviction on a charge of Robbery/Extortion, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense of Theft or Bartering, if such conviction is justified by the evidence presented.

(13) Possession of Dangerous Contraband: An offender commits this offense when they possess, use, have under their control or in their custody any item defined as dangerous contraband. Offenders in possession of any unauthorized Class “A” or “B” tools may be found guilty of this violation.

If the evidence presented is insufficient to sustain a conviction on a charge of possession of dangerous contraband, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense of the charge of II-16 unauthorized possession if such conviction is justified by the evidence presented.

(14) Dealing in Dangerous Drugs: An offender commits this offense when they sell, distribute, or possess with intent to dispense, sell or distribute, give away, or arrange introduction of any quantity of any item defined as dangerous drugs.

(15) Possession of Escape Paraphernalia: An offender commits this offense when they have in their possession, in their cell, in their immediate sleeping area, locker, or immediate place of work or other program assignment, or receives from or gives to another offender, or fashions or manufactures, or introduces or arranges to introduce into the facility any escape paraphernalia including, but not limited to:

(a) Key or key pattern to any lock. A key pattern is any substance upon which the impression of a key is made. This offense will not prohibit possession of keys authorized by the administrative head or designee.

(b) Lock, lock picks, trip wires, locking devices, chain, rope, ladder, tool(s) (Class “A” or “B”), or other items that could be used to affect an escape; and/or,

(c) Mask, wig, disguise, or any other means of altering normal physical appearance that would make ready identification of an offender difficult; and/or,

(d) Mannequin, dummy, replica of a human body, or any item or device that would cause any offender to be counted as being present at a designated time and place when, in fact, they would be absent, or in any way would aid or abet the escape or walk away of an offender; and/or any,

(e) Form of securities, bonds, coins, currency, legal tender, official papers or documents (other than papers or documents relative to judicial or administrative proceedings), unless expressly and specifically authorized by the administrative head or designee of the correctional facility concerned; and/or

(f) Item of an officer’s uniform, civilian clothing, or employee clothing, including badges, buttons, name tags, or items of personal identification, unless expressly and specifically authorized by the administrative head or designee of the correctional facility concerned.

If the evidence presented is insufficient to sustain a conviction on a charge of Possession of Escape Paraphernalia, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense of the charge of II-16 unauthorized possession if such conviction is justified by the evidence presented.

CHAPTER SUBJECT AR # Page 8

(16) Tampering with Locks or Security Devices: An offender commits this offense when they, without authorization, locks, unlocks, disables, alters or modifies, in any way, any lock, locking system, or security devices within the facility and/or uses any unauthorized lock or security devices.

(17) Refusal to Submit to Drug Test: An offender commits this offense when they fail or refuse to submit to any test for the unauthorized use of dangerous drugs requested by any employee or contract worker.

This includes tampering, dilution, and/or adulteration of urine samples, oral swabs, or hair samples or any refusal to sign or initial any document related to the collection sample (chain of custody, security seal, etc…).

*Refer to AR 300-20, Offender Drug Screening, for established time frames.

(18) Threats or Intimidation of Public Officials: An offender commits this offense when they communicate to a public official a determination, scheme, or intent to cause, or to instill, the fear of death, injury, terrorism, or intimidation. Such communication may be verbal, physical, or written.

(19) Solicitation of Employee, Contract Worker, or Volunteer Misconduct: An offender commits this offense when they attempt or are complicit to an act(s) where they seek to persuade, intimidate, influence or entice any employee, contract worker, or volunteer into an unlawful act and/or violation of DOC policy for any reason.

An offender will not be charged with Solicitation if the employee, contract worker or volunteer consented to the sexual or romantic activity (115.78(e)).

(20) Unauthorized Possession or Use of Portable Electronic Communication Device and/or Media Storage Device: An offender commits this offense when they possess or use an unauthorized communication device, to include but not limited to: cell phone, computer, pager, or DTR (digital trunked radio), any unauthorized external storage device with or without WiFi capability, or a media storage device. If the evidence presented is insufficient to sustain a conviction on a charge of Possession or Unauthorized

Use of Portable Electronic Communication Device and/or Media Storage Device, the hearing officer or board will have the discretion to modify the charge and convict the offender of the offense of the charge of II-16 unauthorized possession if such

(21) Sexual Assault: An offender commits this offense when they have active or passive contact or fondling which is coerced or forced between their genitals, hand(s), mouth, buttocks, anus, breast or with the use of animate or inanimate objects and the genitals, hand(s), mouth, buttocks, anus, or breast of another person. Contact can be with or without clothing being worn by one or both parties (115.78(a)). If the evidence presented is insufficient to sustain a conviction on the charge of Sexual Assault, the hearing officer or board will have the discretion to modify the charge and to convict the offender of Sexual Harassment or

Sexual Misconduct if such conviction is justified by the evidence presented.

(22) Hazardous Liquid Assault on Staff: An offender commits this offense when they intentionally cause or intentionally set into motion a force which causes injury or contamination to any employee, contract worker or volunteer through contact with any hazardous liquid to include: feces, urine, spit, blood, boiling or hot liquid, any chemical or other hazardous liquid capable of causing injury or contamination.

(23) Hazardous Liquid Assault on Offender: An offender commits this offense when they intentionally cause or intentionally set into motion a force which causes injury or contamination to any other offender through contact with any hazardous liquid to include:

feces, urine, spit, blood, boiling or hot liquid, any chemical or other hazardous liquid capable of causing injury or contamination.

(24) Cruelty to Animals: An offender commits this offense when they knowingly, recklessly or with criminal negligence cause an animal to be unnecessarily or cruelly beaten, drugged or housed in a manner that results in chronic or serious physical harm, engages in a sexual act with an animal or recklessly or knowingly tortures, mutilates or kills an animal.

CHAPTER SUBJECT AR # Page 9

(25) Harassment of Victim: An offender commits this offense when they contact the victim or “victim designee” (as defined in

C.R.S. 24-4.1-302 (3)(4)(5)(6)), without written authorization from the courts or an employee, in any manner to include writing, phone calls, or personal or direct contact. Violation of restraining orders will be included, unless allowed by the court in writing specifying the exemptions to the restraining order. Attempt and/or complicity may be charged in the case where the offender solicits a third party to make an unauthorized contact.

E. CLASS II OFFENSES:

(1) Theft: An offender commits this offense when they knowingly obtain or exercise control over property or services belonging to someone else, without authorization. Value of property or services will be substantiated by written documentation if restitution is to be sought or ordered as a sanction.

If the evidence is insufficient to sustain a conviction on a charge of Theft, the hearing officer or board will have the discretion to modify the charge and to convict the offender of the offense of Bartering, if such conviction is justified by the evidence presented.

(2) Damage to Property: An offender commits this offense when they intentionally or through recklessness, damage, or cause to be damaged any property of another. Value of property will be substantiated by written documentation if restitution is to be sought or ordered as a sanction.

(3) Bribery: An offender commits this offense when they offer to confer, confers, or agrees to confer anything of value upon any employee, contract worker, volunteer, or other offenders with the intent to influence that person’s or offender’s exercise of discretion or other action in any capacity.

(4) Fighting Class II: An offender commits this offense when they engage in a physical altercation including, but not limited to:

exchange of punches, strikes, shoves, kicks, or any offensive contact with another offender that does not involve the use of a weapon, does not result in bodily injury requiring medical treatment, or does not require a use of force to gain compliance. Self-defense can be a defense to the charge of Fighting.

(5) Forgery: An offender commits this offense when they create or alter a document with intent to deceive.

(6) Fraud: An offender commits this offense when they:

(a) Through deception, trickery, or false claims, attain anything for personal gain or benefit; or,

(b) Alters, destroys, conceals, or removes anything with intent to impair its authenticity or availability; or,

(c) Presents or uses anything which they know to be false with intent to deceive.

(7) Possession or Use of Dangerous Drugs: An offender commits this offense if they possess or uses any quantity of unauthorized dangerous drugs.

(8) Possession or Use of Tobacco or Tobacco Products: An offender commits this offense when they possess or use any tobacco

(smoking or smokeless) or tobacco products/paraphernalia, including but not limited to, rolling papers, pipes, and lighters.

(9) Perjury: An offender commits this offense when they make a false statement under oath or affirmation or swear or affirm the truth of a statement previously made and does not believe the statement to be true.

(10) Possession of Syringe or Drug Paraphernalia: An offender commits this offense when they possess a syringe or other implement capable of injecting a substance under the skin of any individual, and/or possess an article, equipment, or apparatus capable of administering a dangerous drug or volatile substance.

CHAPTER SUBJECT AR # Page 10

(11) Threats: An offender commits this offense when they communicate a determination or intent (either verbally, physically, or in writing) to injure another person or to commit a crime of violence or an unlawful act presently or in the future, and the probable consequence of such threat(s) (whether or not such consequence, in fact, occurs) is:

(a) To place another person in fear of bodily injury; or,

(b) To intimidate an employee from completing their official duties; or,

(c) To cause damage to property; or,

(d) To jeopardize the security of the facility.

(12) Abuse of Medication: An offender commits this offense when they, in any way;

(a) Store, save, give away, discard, or throw away, possess, or remove any prescription medication without authorization or administers the substance to themselves or others in a manner other than which was intended by the manufacturer; or,

(b) Give away any over-the-counter medications or administer the substance to themselves or others in a manner other than that which was intended by the manufacturer.

(13) Interference with Search: An offender commits this offense when they refuse to allow, obstruct, or hinder in any way, an employee, contract worker, or volunteer in their search of any person, housing unit, or property.

(14) Advocating or Creating Facility Disruption: An offender commits this offense when they urge, organize or transmit through any form of communication or action, threats, demands, or suggestions that is intended to advocate a disruption or incite a riot, or if they actually disrupt operations of any segment of a facility.

(15) Association: An offender commits this offense when they:

(a) While at a community placement facility or non-resident status, associates outside the facility, with a person they know or have reason to know is a convicted felon or a validated member of a security threat group without first obtaining authorization from an appropriate employee, contract worker, or volunteer, or,

(b) While assigned to an off-grounds or outside crew, associates with the general public without first receiving authorization.

(16) Unauthorized Possession: An offender commits this offense when they have in their possession, in their cell, in their immediate sleeping area, locker, or immediate place of work or other program assignment or fashions, manufactures, introduces or attempts to arrange or arranges to introduce into the facility any item defined as contraband.

Offenses under this subsection will not include unauthorized possession of dangerous contraband, dangerous drugs, key or key pattern, syringes or drug paraphernalia, tattooing/piercing/branding paraphernalia, tobacco or tobacco products, communications or media storage devices, or escape paraphernalia.

(17) Body Modification: An offender commits this offense when they receive or give a tattoo, piercing, and/or brand or commits any act of body mutilation/modification or has in their possession any tattooing/piercing/branding /mutilation paraphernalia to include, but not limited to: ink, needles, piercing jewelry, irons, or altered electrical appliances.

(18)Count Interference: An offender commits this offense when they cause or participate in any interference, delay, disruption, or deception with regard to the process of counting part or all of the offender population, including, but not limited to: hanging, fastening, or attaching any sheet, blanket, curtain, drapery, or other material whether transparent or not on any part or all of the

CHAPTER SUBJECT AR # Page 11 front or door of a cell or around a dormitory bed or other immediate sleeping area without the permission of an authorized employee, contract worker, or volunteer.

(19) Failure to Work: An offender commits this offense when they:

(a) Fail to perform work assigned; and/or,

(b) Fail to report to work;

Medical authorization by a clinical employee or contract worker is a defense to this code violation.

(20) Gambling: An offender commits this offense when they play for money or other things of value at any game including, but not limited to: those played with cards or dice, or bets on the side or hand of those playing, or bets anything of value on the outcome of any observable event or ascertainable happening or organizes or is in possession of any game of chance, lottery, betting pool, betting slips or records, or is in possession of other similar devices.

(21) Sexual Misconduct: An offender commits sexual misconduct when they have active or passive contact or fondling which is not coerced or forced between their genitals, hand(s), mouth, neck, buttocks, anus, or breast or with the use of animate or inanimate objects and the genitals, hand(s), mouth, neck, buttocks, anus, or breast of another person. Contact can be with or without clothing being worn by one or both parties (115.78(a)).

An offender will not be charged with Sexual Misconduct or Sexual Harassment if the employee, contract worker or volunteer consented to the sexual or romantic activity (115.78(e)).

(21a) Sexual Harassment

An offender commits sexual harassment when they subject (through non-contact) another person to verbal or written statements or gestures of a sexual or romantic nature, including but not limited to:

(a) The use of obscene or profane language. Making demeaning references to gender, or derogatory comments about body or clothing, or,

(b) Making sexually harassing gestures, which may include the use of inanimate objects, or,

(c) Making threats of physical force or improper pressure for sexual acts, or requests for sexual acts, or

(d) Displaying their anus, genitals, or breasts (female) to another person, or,

(e) Masturbating in the presence or direct vision of another person.

An offender will not be charged with Sexual Misconduct or Sexual Harassment if the employee, contract worker or volunteer consented to the sexual or romantic activity (115.78(e)).

(22) Disobeying a Lawful Order: An offender commits this offense when:

(a) They refuse to obey a verbal or written order or instruction given by an employee, contract worker, or volunteer that is reasonable in nature and that gives reasonable notice of the conduct expected; or,

(b) They refuse a direct verbal or written order to comply with a facility posted operational rules (POR).

(23) Bartering/Selling Goods and Commodities or Services: Any financial transactions permitted between inmates must be

CHAPTER SUBJECT AR # Page 12 approved by staff [5-ACI-1B-23]. An offender commits this offense if they barter, loan, sell, give, receive, borrow, or buy any item without the prior knowledge and permission of an employee, contract worker, or volunteer including, but not limited to:

those items sold in the canteen, clothing, housing furnishings, art and craft items, services, or transfers or attempts to transfer funds from the trust or banking account of one offender to that of another offender and/or when an offender arranges the payment from one offender to another through outside resources without proper authorization. In addition, an offender commits this offense if they enter into a contract or engage in any business without the written approval of the administrative head or designee.

(24) Verbal Abuse: An offender commits this offense when they subject another person to abusive, offensive, or defamatory language or gestures.

(25) Operating Motor Vehicles: An offender commits this offense when they operate any motor vehicle without permission of an employee, contract worker, or volunteer.

(26) Unauthorized Absence: An offender commits this offense when they, without proper authority:

(a) Depart from any place where they were directed to remain by an employee, contract worker, or volunteer, or facility regulations; or,

(b) Are away from their assigned area or are found in an area without authorization from an employee, contract worker, or volunteer of their assigned area.

(c) Fail to remain within or return, as specified in the limits on their confinement, as established under any community corrections placement, but voluntarily returns within 48 hours of designated return time.

(27) Unauthorized/Incidental Contact: An offender commits this offense when they intentionally through negligence or recklessness makes unauthorized physical contact with or strikes an employee, contract worker or volunteer with any part of their person or an object (such as: paper, pills, clothing etc) with a non-hazardous liquid (to include water, cold beverages etc.) in which no injuries were sustained.

(28) Misuse of Clinical Services: An offender commits this offense when they cause the use, or expense, of medical, dental, or mental health care, without good reason, or fails to cooperate with the care without good reason.

(29) Failure to Pay Subsistence: An offender commits this offense when they fail to pay the subsistence fee(s) or ISP fees.

(30) Sanitary Violation: An offender commits this offense when they:

(a) Willfully urinate or defecate in areas other than the facilities provided for such functions, or,

(b) Intentionally commit acts hazardous to the health of any person within the facility.

(31) Animal Neglect: An offender commits this offense when they, in a cruel or reckless manner, mistreat or neglect any animal or fail to provide it with proper food, drink or protection from the weather or abandon the animal.

F. FORMAL DISCIPLINARY PROCEDURES

1. Hearing Officer/Hearing Board Composition and Authority and Hearing Officer/Disciplinary Officer Training:

a. Disciplinary hearings will be held before either an impartial hearing officer or an impartial three-member board [5-

ACI-3C-15], at the discretion of the DOC. Upon the offender’s request, Class I offenses will be heard by a hearing board.

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b. A hearing officer or member of the hearing board may be aware of investigations and information about the incident without being biased. If such involvement exists, a brief description of the officer’s or board member’s involvement will be made a part of the record.

c. Hearing officers and/or board members will not discuss a case to which they are assigned with any other person, except at the hearing on the matter, or after its conclusion.

d. For each facility operated by the DOC, the administrative head will designate an approved list of employee(s) or contract worker(s) who may serve as hearing officers or chairpersons of hearing boards for each such facility. The hearing officer or chairperson will be at or above the rank of correctional officer III, liaison III, community parole officer (CPO), community parole team lead (CPTL) or the equivalent, and will be thoroughly familiar with the provisions of this code.

e. All hearing officers and disciplinary officers will be trained in the elements of due process and jurisprudence in order to conduct impartial COPD hearings. This training will be available through departmental in-service training.

f. The hearing officer or board at each facility will have original and exclusive jurisdiction in all disciplinary matters regarding formal hearings.

g. The hearing officer or board will administer an oath or affirmation to all parties testifying in a hearing. The hearing officer or board will have the power to compel the attendance of any employee, contract worker, or volunteer. The hearing officer or board will have the power to obtain copies of document(s) held by the DOC for the purpose of conducting a hearing.

h. Offenders requiring the use of a translator or interpreter will be afforded this service per AR 100-19, Communication with

Offenders. At no time will the hearing officer, disciplinary officer, or the representative act as a translator or interpreter.

2. Community Corrections Programs and Intensive Supervision Program –Inmate (ISP-I) Offenders:

a. CPOs will utilize intermediate interventions in lieu of regression when the interventions more appropriately address the offender’s criminogenic needs and allows the offender to remain in the community.

b. Community corrections or ISP-I offenders may be placed and held in a local detention facility (e.g., city or county jail), if required for security purposes upon notification of a charge for a Class I or II violation.

c. Detention prior to hearing will not exceed ten working days, except upon request for continuance by the offender or approval from the director of Adult Parole for justifiable cause and documented in the record.

3. Formal Disposition Procedures:

a. Written policy, procedure, and practice provide that when rule violations require formal resolution, staff members prepare a disciplinary report and forward it to the designated supervisor. [5-ACI-3C-07]

1) The shift commander’s review and approval of an incident report, documents the start of an investigation. In order to ensure appropriate due process steps are taken and a thorough investigation is conducted, AR Form 150-01L, Reviewing Supervisor Incident Investigation Report, will be completed by the designated disciplinary officer.

2) If a Class I or Class II charge(s) is brought against an offender, the disciplinary officer will begin an independent review, as soon as possible. An investigation of a COPD incident will begin as soon as possible, but no later than 24 hours from the reporting of the incident, and completed without unreasonable delay, unless exceptional circumstances cause the delay[5-ACI-3C-09]. Exceptional circumstances which cause any delay in the investigation of the incident will be documented in and on the record.

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3) Notification and consultation with Mental Health will occur when any offender identified as having a serious mental illness or significant functional impairment is the subject of potential charges. Serious mental illness is shown as an

“M” or “O” qualifier on the offender’s P-code or a P code of 4 or 5 with any qualifier or an IDD code of 4 or 5 with any qualifier. The disciplinary officer will send AR Form 150-01K, Mental Health Assessment for COPD

Charges/Sentencing to the mental health supervisor at the facility for completion. The completed AR Form 150-01K, will be used by the disciplinary officer to determine if COPD charges would be appropriate for the offender. If a formal hearing is held, AR Form 150-01K will be maintained in the case record for use in considering appropriate sanctions in the event of a guilty finding.

4) The disciplinary officer may consult with anyone, including the offender, during the review. If the disciplinary officer finds cause to believe that any violation was committed by the offender charged, he/she will advise the offender of the intent to charge, the specific charge and possible sanctions, and the right to waive a formal disciplinary hearing (form

150-1I). Should the offender choose to exercise his right to a formal hearing, the disciplinary officer will initiate and sign AR Form 150-01B, Notice of Charge(s).

b. Waiver of Hearing:

1). Class II offenses require a formal hearing unless managed through the Immediate Accountability

Resolution Process (IAR) or the offender waives their right to a hearing. (Section C below).

The process for an offender to waive their right to a C.O.P.D. hearing is as follows:

a) The offender, at the time they are presented the Notice of Charges, can elect to attend the hearing, waive their right to attend the hearing or waive the hearing in its entirety.

b) Waiving the right to the hearing requires AR Form 150-01I to be completed.

c) In the event an offender states that they wish to waive the hearing but refuses to sign the Waiver of

Hearing portion of the form, then a hearing will take place with or without the offender attending.

d) Offenders that choose to waive a hearing are pleading guilty to the charge.

e) Offenders can waive…