N.J. Admin. Code § 10A:71-3.4

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

Section 10A:71-3.4 - Institutional infractions; adult inmates

(a) It shall be the responsibility of the chief executive officer, within seven days of resolution of any administrative appeal, to notify in writing the senior Board representative at the institution that an adult inmate has committed an institutional infraction listed in (c) below.

(b) Except as otherwise provided in N.J.A.C. 10A:71-5, upon being advised by the senior Board representative at the institution that an adult inmate has committed an institutional infraction listed in (c) below, the appropriate Board panel or designated hearing officer may increase the inmate's eligibility date according to the schedule listed herein.

(c) The appropriate Board panel, designated hearing officer or senior Board representative at the institution shall, at least 14 days prior to the consideration of the adult inmate's case, notify the inmate in writing of the following:

1. The inmate's case and institutional records will be reviewed for the possible increase in the inmate's parole eligibility date as a result of the commission of an institutional infraction(s);

2. The inmate may submit in writing to the appropriate Board panel or designated hearing officer a statement pertaining to any mitigating circumstances.

(d) Institutional infractions specified and defined by the Department shall be assigned to categories on the following basis:

1. Infraction Category A shall consist of .001, Killing.

2. Infraction Category B shall consist of .101, Escape (provided such escape is from a medium or maximum security location); 201, Possession or introduction of an explosive, incendiary device or any ammunition; .202, Possession or introduction of a gun, firearm, weapon, sharpened instrument, knife, or unauthorized tool (provided such weapon is a gun or other firearm); and .251, Rioting.

3. Infraction Category C shall consist of .003, Assaulting any person with a weapon; .006, Extortion, blackmail, protection, demanding or receiving favors, money or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing; .101, Escape (provided such escape is from a minimum security location); .102, Attempting or planning escape (provided such attempt is from a medium or maximum security location); .202, Possession or introduction of a gun, firearm, weapon, sharpened instrument, knife, or unauthorized tool (provided such weapon is not a gun or other firearm); .252, Encouraging others to riot; and .551, Making or possessing intoxicants or alcoholic beverages.

4. Infraction Category D shall consist of .002, Assaulting any person; .102, Attempting or planning escape (provided such attempt is from a minimum security location); .007, Hostage taking; .151, Setting a fire; .155, Adulteration of any food or drink; .203, Possession or introduction of any narcotic paraphernalia, drugs, or intoxicants not prescribed for the individual by the medical or dental staff; .204, Use of any narcotic paraphernalia, drugs, or intoxicants not prescribed for the individual by the medical or dental staff; .207, Possession of money or currency (in excess of $ 50.00 unless specifically authorized); .214, Possession of unauthorized keys or other security equipment; .253, Engaging in, or encouraging, a group demonstration; .255, Encouraging others to refuse to work or to participate in work stoppage; .552, Being intoxicated; and .751, Giving or offering any official or staff member a bribe, or anything of value.

5. Infraction Category E shall consist of .004, Fighting with another person; .005, Threatening another with bodily harm or with any offense against his person or his property; .153, Stealing (Theft); .257, Violating a condition of any community release program; .258, Refusing to submit to urine analysis; .325, Counterfeiting, forging or unauthorized reproduction or unauthorized use of any classification document, court document, psychiatric, psychological or medical report, money or any other official document; .704, Perpetrating frauds, deceptions, confidence games, riots or escape plots through mail; and .708, Refusal to submit to a search.

6. Infraction Category F shall consist of .205, Misuse of authorized medication; .306, Conduct which disrupts or interferes with the security or orderly running of the institution; and .601, Gambling.

7. Infraction Category G shall consist of .803, Attempting to commit any of the above acts preceded by an asterisk, aiding another person to commit any such act, or making plans to commit such acts shall be considered the same as a commission of the act itself.

(e) Except as provided herein, an infraction in any category defined pursuant to (d) above shall result in an increase of the inmate's eligibility date as follows:

1. Category A: 60 months;

2. Category B: 12 months;

3. Category C: Nine months;

4. Category D: Six months;

5. Category E: Four months;

6. Category F: Three months;

7. Category G: One half of the increase which would be required pursuant to this subsection if the inmate's action had resulted in the commission of the infraction which he or she attempted.

(f) The appropriate Board panel or designated hearing officer shall notify the inmate and the chief executive officer of the institution or designee in writing of a determination to increase or not increase the inmate's parole eligibility.

1. If the inmate's parole eligibility date is to be increased, the notice shall include the time period by which the parole eligibility date is to be increased.

2. If the inmate's parole eligibility date is to be increased, the senior Board representative at the institution shall, within 90 days of the appropriate Board panel's or designated hearing officer's decision, notify the inmate and the chief executive officer of the institution or designee in writing of the new parole eligibility date.

(g) When, in the opinion of the designated hearing officer or Board panel reviewing an infraction pursuant to this section, the inmate's conduct and the characteristics of the inmate warrant an adjustment in the increase in the eligibility date required pursuant to (e) above, the eligibility date may be further increased due to aggravating factors or may be decreased due to mitigating factors by up to the following time periods:

1. Category A: 12 months;

2. Category B: Six months;

3. Category C: Four months;

4. Category D: Three months;

5. Category E: Four months;

6. Category F: Three months;

7. Category G: Three months, provided no reduction of the previous eligibility date is made.

(h) The appropriate Board panel, upon the recommendation from the designated hearing officer, may determine that no increase in the eligibility date shall result from an infraction, or the Board panel may establish an increase which differs from that required by the provisions of (e) and (g) if the increase which would be established pursuant to such subsections is clearly inappropriate in consideration of the severity of the inmate's conduct and the characteristics of the inmate.

1. If, in the opinion of the hearing officer establishing the increase in the eligibility date, the increase which would be established pursuant to (e) and (g) above is clearly inappropriate as provided herein, the hearing officer shall refer such case to the appropriate Board panel.

2. Upon determining that the increase in eligibility pursuant to (e) and (g) above is inappropriate, the hearing officer shall, at least 14 days prior to the Board panel's consideration of the case, notify the inmate in writing that an increase in the eligibility date pursuant to (e) and (g) above has not been established and the reasons therefor.

3. The Board panel shall, upon disposition of the case, state in writing to the inmate and the Board the reasons for the establishment of any increase in the eligibility date which differs from the provisions of (e) and (g) above.

(i) When, in the opinion of the hearing officer or Board panel, a series of infractions resulted from a single transaction, any increases in an inmate's eligibility date required pursuant to this section for such infractions shall be deemed to run concurrently.

(j) If an assigned hearing officer or the appropriate Board panel determines that an inmate has persistently violated rules by committing infractions other than those listed in (d) above, the inmate's eligibility date may be increased by no more than three months in any 12 month period by the hearing officer or Board panel.

(k) If, by operation of this section, an inmate serving a sentence of three years or more will serve the maximum sentence(s) prior to parole eligibility, the inmate's case shall be scheduled for a hearing before the appropriate Board panel at least nine months prior to the expiration of the maximum sentence(s) to determine whether the inmate shall serve his maximum sentence(s) or whether the inmate shall be released on parole status prior to the expiration of the maximum sentence(s).

(l) Except as otherwise provided for by statute, an inmate shall not be required to serve the maximum sentence(s) imposed without being considered for parole by the appropriate Board panel unless deemed administratively unfeasible.

(m) Any increase in an inmate's eligibility date established pursuant to this section shall be reduced by any loss of commutation time imposed by the Department which affects parole eligibility due to the commission of the same institutional infraction.

(n) If a Board member, a Board panel or the Board has a certified parole release date for an inmate, then this section shall not be applied to such inmate until a rescission hearing is conducted pursuant to N.J.A.C. 10A:71-5.

(o) The prior provisions of (d), (e) and (g) above shall apply to inmates whose institutional infractions were committed prior to May 6, 1985 and shall continue in effect for that purpose. The amendments to (d), (e) and (g) above shall apply to inmates whose institutional infractions were committed on or after May 6, 1985.

(p) Except as provided herein, the following procedures for the restoration of time by which an inmate's parole eligibility date was increased by a Board panel or designated hearing officer pursuant to this section shall apply to all inmates presently incarcerated.

1. Up to two-thirds of the time period by which an inmate's parole eligibility date was increased shall be restored to the inmate over the two year period immediately following the commission of the infraction which resulted in the increase to the parole eligibility date. The two year period must run consecutively and shall be calculated commencing from the date of the commission of the infraction. Time shall be restored at the rate of one-third for each year an inmate remains infraction free.

i. If an inmate completes the first year infraction free, the inmate shall have restored one-third of the time period by which the parole eligibility date was increased. In the case of an adult inmate, an appropriate adjustment in the amount of commutation credit applied in the computation of the increased parole eligibility date shall be made as a result of the restoration of time.

ii. If an inmate completes the second year infraction free, the inmate shall have restored one-third of the time period by which the parole eligibility date was increased. In the case of an adult inmate, an appropriate adjustment in the amount of commutation credit applied in the computation of the increased parole eligibility date shall be made as a result of the restoration of time.

2. In no case shall an inmate be restored greater than two-thirds of the time period by which the parole eligibility date was increased.

3. It shall be the responsibility of the staff of the Board at each institution to periodically review the progress of inmates whose parole eligibility dates have been increased pursuant to this section.

4. Upon confirmation by the senior Board representative at the institution that an inmate has remained infraction free for the specified time periods, the senior Board representative shall insure that the staff of the Board:

i. Automatically restores the designated time period;

ii. Amends the inmate's records accordingly;

iii. Recomputes the inmate's parole eligibility date; and

iv. Notifies the inmate of the time period restored and the amended parole eligibility date.

5. The provisions of this subsection shall not apply in the following cases:

i. Inmates who have committed the following institutional infractions:

(1) .001--Killing;

(2) .101--Escape (provided such an escape is from a medium or maximum security location);

(3) .002--Assaulting any person (only those cases where a person has suffered physical injury);

(4) .003--Assaulting any person with a weapon;

(5) .007--Hostage taking;

(6) .151--Setting a fire;

(7) .201--Possession or introduction of an explosive, incendiary device or any ammunition;

(8) .202--Possession or introduction of a gun, firearm, weapon, sharpened instrument or knife;

(9) .251--Rioting.

N.J. Admin. Code § 10A:71-3.4

R.1980 d.226, effective 5/21/1980.
See: 12 New Jersey Register 335(b).
As amended, R.1980 d.434, effective 10/7/1980.
See: 12 New Jersey Register 537(a), 12 New Jersey Register 665(a).
Substantially amended.
Amended by R.1985 d.213, effective 5/6/1985.
See: 16 New Jersey Register 3391(a), 17 New Jersey Register 1096(a).
Section substantially amended.
Amended by R.1986 d.306, effective 8/4/1986.
See: 18 New Jersey Register 929(a), 18 New Jersey Register 1610(a).
Added to (d)5: ".004, Fighting with another person;".
Amended by R.1988 d.336, effective 7/18/1988.
See: 19 New Jersey Register 1396(b), 20 New Jersey Register 1716(b).
Added .007 Hostage taking to (d); added (p).
Amended by R.1989 d.151 effective 3/20/1989.
See: 20 New Jersey Register 2129(a), 21 New Jersey Register 767(a).
(p)5.i, new (2) added, .101 Escape, (2)-(8) renumbered as (3)-(9).
Administrative correction to (g).
See: 22 New Jersey Register 356(a).