N.J. Admin. Code § 10A:5-2.8

Current through Register Vol. 56, No. 9, May 6, 2024

Section 10A:5-2.8 - Prehearing, initial placement hearing, and appeal of initial placement hearing

(a) The inmate may be placed in Prehearing M.C.U. by order of an Administrator or designee utilizing an authorization for prehearing M.C.U. form when there is reasonable evidence that, if the inmate remains in general population, there is an immediate threat to the safety of others or of interrupting the safe, secure, and orderly operation of the correctional facility.

1. The inmate shall be entitled to an initial placement hearing within 72 hours following placement into Prehearing M.C.U., absent exceptional circumstances.

2. An inmate placed in Prehearing M.C.U. shall be given written notice on the Criteria Record Sheet, as described at N.J.A.C. 10A:5-2.6within 24 hours following placement in Prehearing M.C.U.

3. When an emergency exists that precludes completion of the authorization form prior to placement, the form shall be completed immediately following placement.

4. In all cases where an inmate is placed in Prehearing M.C.U., the chairperson of the M.C.U.R.C. shall review the authorization form, which shall be forwarded to the chairperson by the next full business day of placement into the Prehearing M.C.U., and determine, based on the criteria set forth at (a) above, if there is reasonable evidence to hold the inmate in the M.C.U. The chairperson shall then communicate the determination to the Administrator or designee within 24 hours. The chairperson shall be granted access to whatever evidence the chairperson deems necessary to make a recommendation.

(b) The initial placement hearing shall be conducted by an M.C.U. Hearing Officer. This person shall hold the rank of Assistant Superintendent or above and be designated by the Deputy Commissioner or Assistant Commissioner of Operations to hear and preside over the M.C.U. initial placement hearings. The M.C.U. Hearing Officer shall conduct the initial placement hearing utilizing the same processes for M.C.U.R.C. formal reviews and shall fulfill the functions designated for the M.C.U.R.C. and Administrator set forth at N.J.A.C. 10A:5-2.6.

1. The administration shall present its case first, followed by the inmate. The administration representative may question witnesses directly. The inmate may not directly question witnesses, including witnesses called by the inmate. The inmate, however, may submit questions through the inmate's representative or the M.C.U. Hearing Officer. The M.C.U. Hearing Officer may exclude any questions deemed irrelevant or harassing in nature.

2. If the proposed M.C.U. placement is based in part on information from a confidential informant, the inmate shall be provided with a concise statement of facts establishing that the informant is credible or his or her information is reliable and the informant's statement (either in writing or as reported) is in language that is factual, not conclusive, and is based upon the informant's personal knowledge of the matters contained in his or her statement.

3. When information utilized by the M.C.U. Hearing Officer is deemed confidential and cannot be fully disclosed to the inmate, the Hearing Officer shall direct the inmate and the inmate's representative to leave the hearing while this information is being presented or discussed. Whenever practical, the inmate shall be informed of the confidential information in accordance with the provisions of this section.

4. The same criteria appearing at (b)1 above, which are used to initially place the inmate in the Prehearing M.C.U. shall apply to the decision to place an inmate in the M.C.U.

5. The M.C.U. Hearing Officer shall apply the following factors when making a decision:

i. Disciplinary records;

ii. Past criminal offences;

iii. Previous institutionalizations, including records of serious misbehavior;

iv. Reports by professional staff;

v. Reports indicating current criminal behavior;

vi. Evidence of an attitude that indicates an unwillingness to follow rules or obey orders;

vii. Inability to maintain a satisfactory work record;

viii. Unsatisfactory progress in treatment or rehabilitative programs; and/or

ix. Evidence of an inability to house with other inmates in a non-disruptive manner.

6. Within seven business days, the M.C.U. Hearing Officer shall provide a written notice of decision to the inmate advising the inmate of the reason for the decision and a summary of the evidence relied upon. The decision of the M.C.U. Hearing Officer to place an inmate in the M.C.U. shall be based on the information contained in the record. In the event a record contains information received from a confidential informant, the M.C.U. Hearing Officer shall provide a summary of facts upon which the M.C.U. Hearing Officer concluded that:

i. The informant is credible and that his or her information is reliable;

ii. The informant's statement (either in writing or as reported) is in language that is factual rather than a conclusion; and

iii. The informant's statement and information is based on his or her personal knowledge of the matters.

7. A non-voting recorder shall be present for the initial placement hearing to make a record of the proceedings. The recorder shall place all proceedings in the inmate's M.C.U. and classification folders as appropriate.

(c) At the time the inmate is provided with the M.C.U. Hearing Officer's decision, the inmate shall be advised of the opportunity to appeal the decision to an employee designated by the Commissioner to receive such appeals. The inmate shall have seven business days to submit a letter of appeal. The employee receiving such appeals may approve or modify any M.C.U.R.C. decision as deemed appropriate. The employee receiving such appeals may also order further hearings where appropriate.

1. During the employee's review, the following factors shall be considered:

i. Whether there was compliance with N.J.A.C. 10A:5-2.6 and this section;

ii. Whether the decision of the M.C.U. Hearing Officer was based on clear and convincing evidence; and

iii. Whether the decision rendered was appropriate to the inmate's case.

2. The employee's decision shall be forwarded to the inmate in writing within seven business days following receipt of the appeal.

N.J. Admin. Code § 10A:5-2.8

Amended by 47 N.J.R. 2500(a), effective 10/5/2015

Amended by 53 N.J.R. 719(a), effective 5/3/2021