Md. Code Regs. 12.03.01.02

Current through Register Vol. 51, No. 22, November 1, 2024

Section 12.03.01.02 - Definitions

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1) 'Assault" means an unlawful or impermissible threat or attempt to do bodily harm to another.

(2) 'Assigned area" means a location where an inmate is authorized or permitted.

(3) "Battery" means the unlawful, unauthorized, or impermissible touching or striking of an individual by another with or without consent.

(4) Business Day.

(a) "Business day" means an official working day of the week, typically, the days between and including Monday to Friday.

(b) "Business day" does not include:

(i) State holidays;

(ii) Weekends (Saturday and Sunday);

(ii) A day on which facility operations or activities are limited or reduced to only necessary or essential services due to security or safety reasons; or

(iv) A day on which Department administrative offices are closed.

(5) "Calendar day " means a day of a week.

(6) "Category of Inmate Rule Violation " means the grouping of inmate rule violations according to the severity of the offense.

(7) "CMHC-J" means the Correctional Mental Health Center-Jessup.

(8) "Competent" means the defendant is able to:

(a) Appreciate and understand the alleged inmate rule violation charged; and

(b) Participate in the inmate disciplinary process to resolve the inmate rule violation charged.

(9) "Constructive possession" means the defendant has dominion or control over an article, object, asset, substance or property based upon consideration of the following factors:

(a) The proximity of the defendant to the article, object, asset, substance, or property;

(b) The ability and means of the defendant to possess the article, object, asset, substance, or property;

(c) Whether the article, object, asset, substance, or property was within the plain view or within the knowledge of the defendant;

(d) The proprietary interest in the place where the article, object, asset, substance, or property was found or rests; or

(e) The defendant's participation with others in a common design involving mutual use and enjoyment of the article, object, asset, substance, or property.

(10) "Contraband" includes property, a device, an instrument, an article, a liquid, a substance, or a material that is:

(a) Defined as non-allowable, or is not authorized by statute, regulation, directive, or policy for an inmate to possess, transfer to another individual, or receive from another individual;

(b) Defined as allowable by statute, regulation, directive, and policy for an inmate to possess, transfer to another individual, or receive from another individual, but that is;

(i) Passed or transferred to another individual without authorization by staff, or the transfer is not permitted by the rules of the facility or Department;

(ii) Possessed in an area or location where an inmate is not permitted by the rules of the facility or Department or by order of staff to possess or use;

(iii) Altered or modified from the original purpose, form, design, use, or content;

(iv) Used for a purpose other than that which is permitted; or

(v) Required to be registered with the facility or Department and is found in the inmate's possession without the required registration under the rules of the facility or Department.

(11) "Controlled dangerous substance (CDS)" means a substance listed in schedules I through V as defined in Criminal Law Article, §§ 5-101(g) and 5-401 through 5-406, Annotated Code of Maryland.

(12) "Cumulative witness" means an individual who can only testify to facts already in evidence or whose proffered testimony would be repetitive to the proffered testimony of another witness already approved by the hearing officer to testify.

(13) "Disrespect" means a physical act, verbal statement, or gesture:

(a) Of insolence that is arrogant, presumptuous, impudent, or insulting in manner; or

(b) That demonstrates a lack of respect, directly or indirectly, toward an individual.

(14) Disruptive Act.

(a) "Disruptive act" means an action that may:

(i) Disturb the peace of the community;

(ii) Interfere with or prevent the orderly operation of a facility or community detail; or

(iii) Interfere with or threaten the security of a facility or the community.

(b) "Disruptive act" includes, but is not limited to:

(i) An unauthorized gathering;

(ii) A demonstration or mass disturbance;

(iii) A group work stoppage;

(iv) Misusing, altering, tampering with, or damaging property during an act that interferes with or threatens the security of a facility or the community;

(v) Setting afire; or

(vi) Possessing, using, or manufacturing an explosive or flammable device, excluding an unaltered cigarette lighter, match, or pack of matches.

(15) "Escape " means the defendant's:

(a) Unlawful or unauthorized absence or departure from a facility or grounds of a facility to which the inmate is assigned or located;

(b) Unlawful or unauthorized absence or departure from a locked cell or dormitory to which the inmate is assigned or located;

(c) Unlawful or unauthorized absence or departure from a designated area or location while out of the facility and in the community;

(d) Unlawful or unauthorized failure to follow an approved itinerary for travel or movement while in the community or departure from an order, rule, policy, or procedure of the Department or facility for travel or movement while in the community; or

(e) Failure while in the community to return at a specified time to a place of assignment, custody, or confinement.

(16) "Facility representative" means staff designated by the managing official, or a designee, to represent the interests of the facility under the inmate disciplinary process.

(17) "Fraud or misrepresentation" means a false, misleading, or deceptive:

(a) Act;

(b) Statement;

(c) Expression; or

(d) Omission.

(18) "Hearing officer" means an impartial, non-advocate, factfinder who presides over the defendant's disciplinary proceeding and determines the disposition of an inmate rule violation charged and, if applicable, imposes sanctions.

(19) Horseplay.

(a) "Horseplay" means rough, rowdy, or boisterous play that is consensual and done for amusement or entertainment of all involved parties.

(b) "Horseplay" may not be used by a defendant as a defense to a battery charge where there is evidence of physical contact between the defendant and one or more individuals.

(20) "Hostage" means an individual whose freedom of movement is restricted without authority or justification.

(21) Immediate family" as used in this chapter means an inmate's legal spouse, natural grandparents, parents, legal guardian, siblings, children, grandchildren, and persons who have these relationships through adoption.

(22) Indecent exposure" means the willful display of the genitals, buttocks, or female breast to another individual as an act of abuse, disrespect, vulgarity, harassment, humiliation, or sexual gratification.

(23) Incident report" means a disposition of an inmate rule violation charged where the defendant and the facility or the defendant and the hearing officer agree that the defendant:

(a) Waives a hearing and hearing rights for the inmate rule violation charged;

(b) Receives no sanction for the inmate rule violation charged; and

(c) Agrees that the Notice of Inmate Rule Violation and the Notice of Inmate Disciplinary Hearing forms documenting the incident report shall be maintained in the defendant's case record file.

(24) Informal Disposition or Resolution

(a) Informal disposition or resolution" means a process, other than a formal disciplinary proceeding under the inmate disciplinary process, that permits, based on a mutual agreement between the defendant and facility staff, or the defendant and the hearing officer, resolving an inmate rule violation charged through an incident report or informal disposition.

(b) Informal disposition or resolution" includes a disposition of an inmate rule violation charged where the defendant and the facility or the defendant and the hearing officer agree that the defendant:

(i) Waives a hearing and hearing rights for the inmate rule violation charged;

(ii) Receives a sanction in accordance with this chapter; and

(ii) Agrees that the Notice of Inmate Rule Violation and the Notice of Inmate Disciplinary Hearing forms documenting the informal disposition shall be maintained in the defendant's case record file.

(25) Inmate.

(a) "Inmate" means an individual who is actually or constructively detained or confined in a correctional facility.

(b) Inmate", unless specifically stated otherwise in this chapter, includes an individual referred to as a:

(i) Non-sentenced resident or detainee in the custody of the Department and confined to a correctional, detention, or transitional facility or home detention program;

(ii) Sentenced inmate or detainee in the custody of the Department and confined to a correctional, detention, or home detention facility;

(iii) An Eligible Person or Patuxent youth, or any other individual in the custody of the Department and housed in the Patuxent Institution;

(iv) A juvenile housed in the custody of the Department and confined to a correctional, detention, or home detention facility; and

(v) An individual committed to the custody of the Department, but housed in or confined in another jurisdiction.

(26) "Inmate representative" means a staff member or an inmate assigned to the defendant's housing facility and permitted to represent and assist the defendant during the defendant's disciplinary proceeding under this chapter.

(27) Intimidating, Coercive, or Threatening Language.

(a) "Intimidating, coercive, or threatening language" includes language that is directed toward an individual or property named or un-named that intends to induce fear, or implies or intends to imply harm, the threat of harm, or the use of force.

(b) "Intimidating, coercive, or threatening language. " A defendant may not claim the inability to carry out the implied or perceived harm, threat of harm, or use of force as a defense to a charge of using intimidating, coercive, or threatening language under this regulation.

(c) "Intimidating, coercive, or threatening language" includes, but is not limited to, language that:

(i) Seeks compliance with a demand; or

(ii) Intends to deter or prevent an individual from performing or carrying out an act, task, or action.

(d) "Intimidating, coercive, or threatening language " may be expressed or conveyed:

(i) Verbally;

(ii) In writing;

(iii) By gesture;

(iv) By drawing; or

(v) By display or projection of an image.

(28) "Intoxicant" means an unauthorized medication, drug, or substance that has psychotropic or hallucinogenic properties, excluding alcohol, that may or may not also be identified in the Annotated Code of Maryland as a controlled dangerous substance.

(29) "Masturbation" as used in this chapter means intentional touching of the individual's or another inmate's genital, anal, breast, or other intimate area for: (a) Sexual arousal or gratification; and (b) The abuse, intimidation, humiliation, or harassment of staff.

(30) "May not" means an absolute prohibition.

(31) "Order" means a command, direction, or instruction given by staff to an inmate.

(32) Plea Agreement.

(a) Plea agreement" means the defendant and facility representative agree to a mutually satisfactory disposition for each defendant inmate rule violation charged that is subject to approval by the hearing officer.

(b) "Plea agreement" is not binding on a hearing officer and does not require that the hearing officer honor the sanctions recommended as part of a plea agreement reached by the defendant and the facility representative.

(33) "Possess" or "possession" means actual or constructive dominion or control over:

(a) An article;

(b) An object;

(c) An asset;

(d) A substance; or

(e) Property.

(34) "Preliminary review" means an initial appearance by a defendant during a defendant's disciplinary proceeding before a hearing officer to:

(a) Review the Notice of Inmate Rule Violation form and Notice of Inmate Disciplinary Hearing form;

(b) Review an attachment or other evidence submitted by facility staff or a defendant regarding the inmate rule violation charged;

(c) Determine if the defendant requested representation, a witness, or evidence to present to the hearing officer; and

(d) Determine whether the defendant and the facility are prepared to proceed to the evidentiary phase of the disciplinary proceeding.

(35) "Restitution" means payment by a defendant for the documented expense or cost to the State, an individual, or entity associated with:

(a) An inmate rule violation charged resulting in a finding of guilt or informal disposition;

(b) An illegal, unauthorized, or unreasonable expense incurred due to the act or actions of the defendant; or

(c) The repair or replacement of altered, damaged, destroyed, stolen, or missing property, tools, or equipment incurred due to the act or actions of the defendant.

(36) "Sanitation assignment" means a sanction pursuant to a guilty finding or informal disposition of an inmate rule violation charged where the defendant is assigned to a cleaning task determined by staff for which diminution credits and pay are not authorized.

(37) Security Equipment or Property.

(a) "Security equipment or property" includes, but is not limited to:

(i) Facility, dormitory, or cell housing fixture, device, or item that is for the purpose of inmate control, confinement, observation, or restraint or the security of the facility, Department, or community;

(ii) Bed or bunk bed;

(iii) Desk or chair;

(iv) Staff uniform;

(v) Light fixture;

(vi) Restraint or confinement fixture, device, or item;

(vii) Computer or communication fixture, device, or item;

(viii) State telecommunication device not intended for inmate use;

(ix) Animal used for the operation, security, safety, or control of a location;

(x) Vehicle or mode of transportation used for the operation, security, safety, or control of a location or the transport of an inmate;

(xi) Fixture, component, device, document or form, or item used for the confinement or restraint of an inmate or security and control of an inmate or the operation, security, safety, or control of a location; or

(xii) Tool, component system, item, or furniture used for the operation, security, safety, control, or maintenance of a location.

(b) "Security equipment or property" excludes the following:

(i) Mattresses, pillows, and bed linen;

(ii) Clothing articles;

(iii) Toilet or sink;

(iv) Mirror;

(v) Towel or wash cloth;

(vi) Locker, drawer, or box;

(vii) Clothes hanger;

(viii) Rug or homemade rug.

(38) "Sexual Act" means the actions of two or more individuals engaged in acts involving physical contact for purposes of sexual arousal or gratification and includes, but is not limited to:

(a) Contact between the penis and the vulva or the penis and the anus;

(b) Contact between the mouth and the penis, vulva, or anus;

(c) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument;

(d) Any other intentional touching, either directly on or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation;

(e) A sexual crime identified under Criminal Law Article, §§ 3-301 - 312, Annotated Code of Maryland; and

(f) Kissing, hugging, or other physical contact for sexual arousal or gratification or the abuse of either party.

(39) "Sexual conduct" means a non-physical behavior or act of a sexual nature by an inmate directed toward another individual and includes but is not limited to:

(a) Sexual advances;

(b) Requests for sexual favors; or

(c) Verbal comments, gestures, or actions of a derogatory and offensive sexual nature.

(40) "Special needs inmate " means a defendant whose ability to participate in the inmate disciplinary process is compromised by impaired hearing, speech, cognition, mental health, or proficiency in the spoken or written English language.

(41) Staff.

(a) "Staff" means a permanent, contractual, or temporary employee or other individual under contract or agreement to provide goods or services to the Department or a unit, facility, or inmate.

(b) "Staff" does not include:

(i) A volunteer; or

(ii) An intern.

(42) State Property.

(a) "State property" means tangible property owned by the Department or another State agency.

(b) State property includes, but is not limited to, items intended for inmate use such as:

(i) Inmate uniforms;

(ii) A desk or chair;

(iii) A sink or toilet;

(iv) A locker, drawer, or box;

(v) Inmate telephone, teletypewriter (TTY) device, or other telecommunication device;

(vi) Food from dietary other than what is issued as part of a State provided meal; or

(vii) Food from dietary that is removed from or attempted to be removed from dietary without authorization even if issued as part of a State provided meal.

(43) "Telecommunication device " means:

(a) A device that may be:

(i) 3G, 4G, or greater or less enabled;

(ii) Wifi, internet, or email ready; or

(iii) Enabled to transmit telephonic, electrical, digital, cellular, radio communications, or photographs regardless of whether functional or non-functional;

(b) An accessory or part of a device that may be:

(i) 3G, 4G, or greater or less enabled;

(ii) Wifi, internet, or email ready; or

(iii) Able to transmit telephonic, electrical, digital, cellular, or radio communications or photograph regardless of whether functional or non-functional; or

(c) An item including, but not limited to the following:

(i) Tablet;

(ii) Cellular or digital telephone;

(iii) Video, audio, or photographic device; or

(iv) Modem equipped device; or

(d) A component of or an accessory for the items such as but not limited to:

(i) SIM card;

(ii) Bluetooth equipment;

(iii) Charger;

(iv) Earpiece; or

(v) Carrying case.

(44) Unauthorized Financial Account.

(a) "Unauthorized financial account" means a financial account that is not permitted by the Department for an inmate to open, access, or otherwise use.

(b) "Unauthorized Financial Account" includes, but is not limited to, the following:

(i) Check or checking account;

(ii) Check card or check card account;

(iii) Credit card or credit card account;

(iv) Green Dot card or Green Dot account numbers;

(v) Western Union card or Western Union account numbers;

(vi) Pay Pal card or Pay Pal account numbers;

(vii) Debit card or Debit card account;

(viii) Money order;

(ix) Gift card or gift card account numbers;

(x) Other financial account not authorized or listed under this chapter; or

(xi) Items and documentation related to an unauthorized financial account.

(c) "Unauthorized financial account" does not include an active or reserve account permitted and maintained under Correctional Services Article, § 3-609, Annotated Code of Maryland.

(45) Weapon.

(a) "Weapon" means an instrument, item, article, substance, liquid, tool, or material that:

(i) May be used for offensive or defensive combat;

(ii) May be used to threaten, harm, or injure an individual; or

(iii) May be used for a purpose or reason other than as a weapon, but that could be used as a weapon regardless of whether or not the original character of the instrument, item, article, substance, liquid, tool, or material was altered.

(b) "Weapon" includes an instrument, item, article, substance, liquid, tool, or material that otherwise meets the definition of weapon that an inmate is permitted to possess in an explicitly designated area, but is possessed in an area other than where the instrument, item, article, substance, liquid, tool, or material is not explicitly authorized by staff.

Md. Code Regs. 12.03.01.02

Regulation .02 adopted effective 45:13 Md. R. 668, eff. 7/2/2018