The dehumanizing conditions of U.S. jails have been a topic of concern over the past few years, but the COVID-19 pandemic has laid bare the dire need for widespread reexamination of correctional policies and practices.
In jails, where social distancing is nearly impossible and overcrowding is persistent,
incarcerated people are facing deteriorating conditions, including rising violence, self-harm, severe illness, correctional officer use of force, and death.
Furthermore, correctional staff shortages, coupled with the pandemic, have exacerbated tensions inside correctional facilities, resulting in overenforcement of disciplinary action, including excessive use of restrictive housing.
Though a dearth of research exists regarding the use of disciplinary action in jails, recent research has shown that jails employ restrictive housing as much as, if not more than, prisons.
Restrictive housing, or solitary confinement,
should be based on a finding—after a disciplinary hearing
—that an incarcerated person violated correctional agency rules or standards.
Aspects of disciplinary hearings vary greatly throughout the country.
In general, all incarcerated people are subject to disciplinary codes of conduct and may be subject to sanctions if they violate any of the rules.
If an incarcerated person is alleged to have violated a rule, a correctional staff member, typically called the reporting officer, will formally charge them by writing an incident report.
The charged person will face a hearing body, typically consisting of other correctional officers, and have an opportunity to plead their case.
After the presentation of all the evidence, the hearing body will deliberate and then deliver a decision.
The disciplinary process was established in Wolff v. McDonnell.
Prior to this case, the imposition of punishment was remarkably arbitrary with no guarantee of notice or a hearing.
Wolff defined the due process rights of incarcerated people who have been convicted of crimes, but the Court has clarified that its holdings are applicable to those confined in jails pretrial.
In Wolff, the Supreme Court held that incarcerated people are entitled to due process in disciplinary proceedings that can result in the loss of good-time credit
or in punitive segregation.
The Court declined to extend the right to counsel to incarcerated people in disciplinary proceedings, however.
In justifying its decision, the Court explained that inserting counsel into the disciplinary process would make proceedings more adversarial, undermine correctional goals, cause unnecessary delays, and create practical problems in sufficiently providing counsel at every disciplinary hearing.
This Note will argue for a reexamination of the due process protections afforded to pretrial jail populations under the backdrop of the COVID-19 pandemic—specifically the right to counsel in jail disciplinary proceedings.
Part I describes the Wolff protections afforded to incarcerated people in disciplinary proceedings and explores how jurisdictions have applied the Wolff protections and restrictions. Part II asserts that denying a right to counsel in jail disciplinary proceedings contradicts critical constitutional and penological principles. Part III highlights various state and jurisdictional systems that provide counsel to incarcerated people in jail disciplinary proceedings and examines practical barriers to widespread provision of counsel.