22 AAC 05.480. Appeal from disciplinary decisions

(a) If the disciplinary tribunal finds that the prisoner committed an infraction at the conclusion of the hearing, the hearing officer or disciplinary committee chair, as applicable, shall provide the prisoner a form with handwritten or typed findings as to the regulation the prisoner was found to have violated, a statement of punishment imposed, a place to indicate intention to appeal or to waive the right to appeal, and notice that if a prisoner waives the right to appeal that the penalty may then be immediately imposed. The hearing officer or disciplinary committee chair, as applicable, shall orally inform the prisoner of that written notice provision regarding the effect of the waiver and penalties specified in this subsection. If the prisoner wishes to appeal the decision, the prisoner must submit notice of intention to appeal promptly to the hearing officer or disciplinary committee chair, as applicable, at the conclusion of the hearing.

(b) In addition to submitting the notice of appeal under (a) of this section, the prisoner must submit the written appeal to the superintendent of the facility where the disciplinary infraction was heard within three working days after receipt of the disciplinary tribunal's written decision provided under 22 AAC 05.475. The appeal must be in accordance with a form and procedures established by the commissioner. For purposes of appeal, the prisoner may have access to the tape recording of the hearing, except for the portion of a tape that contains the testimony of an informant; that portion must be summarized by the disciplinary tribunal in as much detail as possible so as not to place the informant in danger, and the summary must be made available to the prisoner. An appeal that contains profane or abusive language that was not quoting testimony offered at the hearing may be returned without reconsideration by the superintendent to the prisoner for revision.

(d) Except as provided in (i) of this section, the superintendent shall act on an appeal, and the prisoner must be informed of the superintendent's decision within 10 working days after the superintendent's receipt of the appeal.

(e) Disciplinary action for a minor, low-moderate, or high-moderate infraction may only be appealed to the superintendent. Disciplinary action for a major infraction may be appealed to the director of institutions if the superintendent denies the appeal, in whole or in part. If the superintendent or director of institutions meet any of the criteria set out in 22 AAC 05.450(b) (1) - (3), (5), or (6), the superintendent or director may not act on the appeal and shall forward it to the next level of appeal. If the director of institutions is disqualified, the deputy commission is the next level of appeal.

(f) When acting on an appeal, the superintendent shall consider the disciplinary tribunal's decision under 22 AAC 05.475 and the reasons submitted by the prisoner in support of appeal. The superintendent shall consider whether the disciplinary tribunal's findings justify the adjudication or the penalty imposed. In acting on an appeal, the superintendent may take any of the following actions:

(1) the disciplinary tribunal's decision may be affirmed, reversed, or modified, in whole or in part, in conformance with 22 AAC 05.455(b) , or remanded, in whole or in part, for rehearing, findings, or clarification of findings; the superintendent may take any combination of actions described in this section;

(2) a penalty imposed by the disciplinary tribunal may be reduced or suspended, in whole or in part.

(g) A prisoner who wishes to appeal the superintendent's decision concerning a major infraction to the director of institutions shall submit the prisoner's appeal in writing within two working days after notice of the decision, in accordance with procedures established by the commissioner. The director of institutions has the same powers on appeal as does the superintendent under (f) of this section.

(h) Except as provided in (i) of this section, the prisoner must be informed of the director of institution's decision within 15 working days after receipt of the appeal.

(i) Execution of punishment must be stayed pending an administrative appeal within the department, unless the prisoner is scheduled to be released from incarceration before the expiration of the time periods allowed for appeal under this section. If execution of punishment is not stayed pending appeal, time frames for action on disciplinary appeals are expedited as follows:

(1) one working day for issuance of the disciplinary tribunal decision under 22 AAC 05.475(b) ;

(2) one working day to inform the prisoner of the superintendent's decision under (d) of this section; and

(3) three working days to inform the prisoner of the director of institution's decision under (h) of this section.

(j) A prisoner may not be confined to administrative segregation pending an appeal, except in accordance with 22 AAC 05.485.

(k) Failure of the appropriate official to respond within the time limits set out in this section must be considered a denial of the appeal. However, a late response granting an appeal is valid.

( l ) Notwithstanding any contrary provision of this section, a prisoner incarcerated in a contract correctional facility may appeal any adverse disciplinary action issued by a disciplinary tribunal or a superintendent in accordance with this chapter to the director of institutions. The procedural requirements, including disqualification provisions and time limits, set in this section apply to appeals made under this subsection.

(m) By request of the prisoner or on the official's own motion, the superintendent, director of institutions, or the deputy commissioner may reconsider a final decision or order on appeal issued by the respective official at any time to correct an error.

(n) Notwithstanding any contrary provision in this section, the superintendent may review a disciplinary tribunal's decision even if the prisoner does not appeal. The superintendent may not begin the review under this subsection until any appeal within the department is completed or the prisoner waived the right to appeal. In reviewing an appeal, the superintendent may only take the actions specified in (f)(1) and (2) of this section.

(o) A decision on appeal that has no further level of appeal under this section is a final decision and order of the department that may be appealed to the superior court in accordance with AS 33.30.295 and the Alaska Rules of Appellate Procedure.

History: Eff. 9/10/77, Register 63; am 1/9/87, Register 101; am 11/13/99, Register 152

Authority: AS 33.20.050

AS 33.30.011

AS 33.30.021

AS 44.28.030

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