Register December 2006 No. 612

Chapter DOC 303

APPENDIX

Note: DOC 303.01. These rules apply to all inmates in the legal custody of the department regardless of whether the inmate is housed in a prison, jail, half-way house, or any other facility. It is the Department's policy and practice not to impose discipline on an inmate if the inmate has been subjected to a formal due process procedure in another jurisdiction for the same actions. See DOC 303.08 and 303.63. Differences among institutions make some differences in specific policies and procedures relating to conduct necessary. Delegating authority to permit these differences, limited though they are, is provided for under this chapter. Chapter DOC 303 sets forth the procedure for inmate discipline. It structures the exercise of discretion at various decision making stages in the disciplinary process, including the decision to issue a conduct report, the decision to classify an alleged violation as major or minor, and sentencing. Codifying the rules of discipline in a clear, specific way serves important objectives by itself. Thus, having specific, written rules which deal with prison discipline has the advantages of stating clearly what conduct is prohibited, of eliminating unnecessary discretion, increasing equality of treatment, increasing fairness, and raising the probability that inmates will follow the rules. In addition, there are advantages to the formal rulemaking process: (1) Rules are made by top officers and administrators in consultation with line staff and others, rather than ad hoc by correctional officers. Thus, greater experience can be brought to bear on the decision-making. This is superior to following unquestioned tradition. (2) The rulemaking process results in public input. The "sunshine" effect results in the elimination of abuses and can also provide new perspectives on more subtle questions. Also, corrections officers are public servants and rulemaking, by exposing their decision-making process to the public, is more democratic than a system of following unwritten or at least unpublished traditional policies.

Note: DOC 303.03. The concept of a lesser included offense is derived from the theory of the same name in the criminal law. In these rules, it serves 2 distinct functions. First, it serves to put the inmate on notice that, while charged in writing with one offense, is also charged and may be convicted of either the offense charged or a lesser included offense.

The second function is to insure that an inmate is not punished twice for a single act which satisfies the elements of more than one offense, where conviction for more than one offense is unfair.

If an inmate is charged with a lesser included offense and the committee considers the case, the inmate cannot be later charged with the greater offense. Similarly, if an inmate is charged and found guilty of a higher offense, he or she cannot later be charged with a lesser included offense.

If an act violates more than one section, the offense which best describes the conduct should be charged. This would not prevent separate convictions for a series of related but distinct acts.

Note: DOC 303.05. A purpose of conspiracy statutes in general and of this section is to enable law enforcement and correctional officers to prevent group criminal or prohibited activities at an earlier stage than the stage of attempt. Group activities against the rules pose a greater risk than similar individual activities, and this justifies intervention at an earlier stage and punishment for acts which, if done by an individual, would not be against the rules.

The reason that conspiracy has been made a lesser included offense is the similarity between conspiracy and attempt. Both kinds of offenses provide a sanction against activity which is preparatory to an actual offense. If the offense is completed, however, conspiracy should be included in the other offense just as attempt is.

This section has some overlap with DOC 303.20, Group resistance. However, an inmate need not personally break any substantive rule to be guilty of conspiracy; if a group of inmates agree to participate and then one inmate starts to put the plan into effect, all are guilty of conspiracy. On the other hand, no plan or agreement need be shown to prove a violation of DOC 303.20. DOC 303.20 is intended to deal with nonviolent group activity of a public, disruptive type, such as group refusal to work, while DOC 303.21 is aimed at secret plans for violations of all types.

Conspiracy is a lesser included offense of the planned offense and also of DOC 303.07, Aiding and abetting.

Note: DOC 303.06. Under sub. (3), the maximum penalty for an attempt may be the same as for a completed offense. This is based on the belief that an event over which the actor had no control should not reduce liability so greatly, and on the knowledge that the perpetrator of an attempt is just as dangerous and just as much in need of a deterrent (punishment) as the perpetrator of a completed offense. Of course, the circumstances of an attempt may lead to mitigation in punishment.

Note: DOC 303.07. Sub. (3) states a principle which is followed in modern criminal law. In Wisconsin a person cannot be found guilty of aiding and abetting and the offense itself based on the same incident. In factually ambiguous situations, however, sub. (3) leaves open the option of charging a person with both and letting the hearing officer or adjustment committee decide which is most appropriate.

Sub. (5) provides that the maximum sentence for aiding and abetting is the same as that provided for the offense itself in DOC 303.84. Obviously, however, in many cases the aider or abettor will not be as culpable as the actual perpetrator of the offense. In such cases, the committee or hearing officer should use its discretion to select an appropriate lower sentence.

Note: DOC 303.08. It is necessary to permit institutions to discipline inmates for violations of specific policies and procedures of the institution. For example, violation of work place policies or procedures regarding recreation may result in a penalty. Likewise, housing units may have policies and procedures necessary for the maintenance of order. These policies will vary from institution to institution and place to place within institutions.

Note: DOC 303.09. This section requires that the rules and notes pertaining to inmate discipline be published.

Due process and fundamental fairness require that inmates be given notice of the rules they are expected to follow. Major changes which require written notice to inmates include, an additional offense, a change in process or any change affecting MR date. In addition, awareness and understanding of the rules and of the sanctions for breaking them should increase compliance with them. Authorities on correctional standards agree that disciplinary rules should be made available to inmates in the form of a rulebook. See the note to DOC 303.01.

Note: DOC 303.10. In a prison it is necessary to regulate very carefully the property which may be kept by the inmates. See "Contraband offenses," DOC 303.42-303.48. This section provides the authority to deal with contraband in situations where no one is charged with an offense, as well as when someone is charged and found guilty.

Note: DOC 303.11. The main purpose of the section authorizing temporary lockup is to allow temporary detention of an inmate until it is possible to complete an investigation, cool down a volatile situation or hold a disciplinary hearing. The effort is to avoid punitive segregation without a prior hearing, while assuring that inmates can be separated from the general population when there is good reason to do so. The policy is to keep an inmate in TLU only as long as necessary and then either to release the inmate or put the inmate in segregation based on a disciplinary hearing which conforms to the provisions of this chapter. The frequent reviews by high-ranking administrators and the 21-day limit, both provided by sub. (3), are designed to implement this policy, as well as to give the inmate an opportunity to be heard on the issue of whether TLU is appropriate.

Placement in TLU does not affect MR.

The policy is to use TLU only for an appropriate reason. Where TLU is no longer appropriate, it should be discontinued. There are situations, however, when its use for periods up to 21 days, or an additional period of time, is justified. This period may be extended. It is anticipated that such extensions will be relatively rare.

Sub. (4) identifies the situations in which TLU may be appropriate.

It must be emphasized that there are dangers in correctional institutions that may not exist outside them. For example, an inmate who encourages others to defy authority may create an immediate and real danger. If TLU cannot be relied on to isolate such an individual, it is likely that measures have to be taken against the group, though the group is not culpable.

Likewise, an inmate who is intimidating a witness should be restricted, rather than the victim of the intimidation. This may be the only choice available to correctional officers. Sub. (4) (a). Also, an inmate's presence in the general population may greatly inhibit an investigation because the inmate may destroy evidence not yet discovered by authorities. Temporary isolation until the evidence is found is required. Sub. (4) (a).

During evening recreation, the staff is small, yet large numbers of inmates may be outside their cells. Unless the authority exists to temporarily isolate one who is trying to create a disturbance, it will be necessary to cut short recreation for everyone to prevent trouble. This seems unfair, yet would result if an inmate who was encouraging defiance were not isolated in such a situation. Sub. (4) (b).

Some inmates need to be temporarily isolated for their own protection. For example, an inmate may be endangered by virtue of having cooperated in an investigation. The threat may be such that the only effective way to protect him or her is through TLU. Sub. (4) (c).

Sometimes TLU is necessary to prevent escape. For example, an inmate in a camp who has committed an infraction that is ultimately going to affect an expected parole may panic and try to escape. Sub. (4) (d).

Note: DOC 303.12. This section and DOC 303.17, Fighting, have considerable overlap. An inmate should not be found guilty of violating both sections based on a single incident. If it is possible to determine the aggressor in a fight, this section rather than DOC 303.17 should be used.

Lesser-included offenses: DOC 303.17, Fighting and DOC 303.28 Disruptive Conduct.

Note: DOC 303.13. Most of the various situations covered by s. 940.225, Stats., such as intercourse with a child, are not relevant to the prison situation. Therefore, the only distinction in these sections is between non-consensual intercourse and all other types of non-consensual sexual contact. Intercourse is considered to be the more serious offense.

Lesser included offenses: DOC 303.14, Sexual assault-contact; DOC 303.15, Sexual conduct.

Note: DOC 303.14. Examples of violations of this section are kissing or handholding, grabbing or touching another person's breast, buttocks or genitals (even through clothing), rubbing one's genitals against another person (even through clothing). If the other person consents to the contact, this section is not violated, but both persons have violated DOC 303.15, Sexual conduct.

Violation of this section is less serious than violation of DOC 303.13, and this section is a lesser included offense of that one. See DOC 303.03 on lesser included offenses. However, where an inmate has violated this section in an attempt to rape the other person, a charge of attempted sexual assault-intercourse would be appropriate. See ch. DOC 309 for permissible displays of affection during visits.

Lesser included offense: DOC 303.15, Sexual conduct.

Note: DOC 303.15. It is not always possible to prove lack of consent to sexual activity in situations where it is likely that one inmate is taking advantage of another. Thus, prohibiting consensual sexual contact helps to prevent sexual assault. This section also forbids consensual sex between married people. See chapter DOC 309 for permissible displays of affection during visits.

Note: DOC 303.16. As with all of the offenses against persons, the purpose of this section is the protection of the safety and security of inmates, staff and the public.

DOC 303.28, Disruptive conduct and DOC 303.25, Disrespect, are related offenses.

Note: DOC 303.18. In order that the record of an inmate more accurately reflects the seriousness of his or her acts, there are three distinct offenses. DOC 303.18 is the most serious and should be used against "ringleaders" of a serious disturbance which involves violence. DOC 303.20 is designed for a non-violent disturbance—for example, a sit-down strike.

Lesser included offenses: DOC 303.19, Participating in a riot; DOC 303.20, Group resistance and petitions; DOC 303.28, Disruptive conduct.

Note: DOC 303.19. See the note to DOC 303.18.

Lesser included offenses: DOC 303.20, Group resistance and petitions; DOC 303.28, Disruptive conduct.

Note: DOC 303.20. DOC 303.20 (1) differs from conspiracy (DOC 303.05) in that under this section each individual must actually disobey a rule or participate in unauthorized group activity, while under DOC 303.05 an inmate may be punished for merely planning an offense. Also, under DOC 303.05 a plan or agreement is required, while under sub. (1) spontaneous group action can be punished. Finally, punishment under this section can be added to punishment for the particular rule violated, while punishment for conspiracy cannot, because conspiracy is a lesser included offense of the planned offense.

The inmate complaint review system in sub. (2) is the appropriate method for bringing group complaints. To permit such complaints or statements outside the system could seriously disrupt a prison. Experience has proven that it is important that there be as few opportunities as possible for coercion of one inmate by another. Unrestricted rights to petition in groups generate intimidation and coercion as inmates try to force others to join them. The authorized methods are thought to protect inmates' rights to petition and to express their views.

The complaint system provides a structured way to investigate and respond to complaints. It requires, for example, time limits for responses, to insure that the complaints are addressed. It requires that complaints be signed. Without this, adequate investigation is usually impossible.

Reliance on the complaint system seems to restrict first amendment rights only as is necessary to permit the maintenance of order in institutions.

Sub. (2) prohibits petitions only within an institution. There is no intention to limit petitions addressed to those outside an institution. Typically, this activity is a letter signed by more than one inmate to a newspaper or public official.

Sub. (3) makes it an offense to identify with a gang by some overt act such as signing. Gangs pose a serious threat to institutions. Like many prison rules, this one is aimed at conduct which taken alone might not seem serious to people without experience in corrections. In Wisconsin, the experience has been that permitting such activity creates significant problems and can contribute to the erosion of authority which leads to serious prison disturbances. States that have permitted such activity have uniformly had major problems in their institutions.

See the notes to DOC 303.18 and 303.05.

Note: DOC 303.21. Cruelty to animals can evoke strong emotional and physical reactions by inmates who either commit or witness the act. Not only is this behavior unacceptable, but it can also lead to physically violent retaliation among inmates which compromises the security and safety of both inmates and staff. The purpose of this section is to prevent incidents of animal cruelty and retaliatory action while ensuring a greater level of security in the institution.

Note: DOC 303.22. Since escape is an extremely serious offense (it is one of the few disciplinary offenses which is frequently prosecuted), it is important to define it carefully.

If an inmate is off grounds on work or study release or on furlough, physical deviation from his or her assigned location is enough to prove escape. Of course, an inmate who deviated from a prescribed route or left an area would probably be guilty of violating DOC 303.24, Disobeying orders.

An inmate may be prosecuted in criminal court and also for a rule violation for the same incident.

Lesser included offense: DOC 303.51, Leaving assigned area.

Note: DOC 303.23. The purpose of this section is to help prevent more serious offenses, such as escape, and to promote identification of the offender in other cases.

Note: DOC 303.24. Because of the close proximity of large numbers of people in a prison, prompt obedience to orders is necessary for orderly operation. Obedience is also an important aspect of learning self-discipline.

Under this section, the staff member giving the order need not say, "I am giving a direct order," although this is frequently a desirable practice.

Note: DOC 303.25. Disrespectful behavior of the type prohibited by this section can lead to a breakdown of authority or a serious disturbance This section is directed at conduct within the institution which is potentially disruptive or which erodes authority, not at activity outside the institution.

Note: DOC 303.26. This section forbids all types of contacts between inmates and staff which could lead to favoritism or bribery. Just as theft would be very difficult to control in a prison without a rule prohibiting all transfer of property (See DOC 303.40), so bribery and favoritism would be difficult to control in the absence of a rule prohibiting all exchanges between staff and inmates. Also, the appearance of impropriety may be as destructive to inmate or staff morale as would actual impropriety. The existence of unwritten exceptions tends to undermine respect for the rule as a whole because it may appear to the inmates to represent either half-hearted or arbitrary enforcement.

Note: DOC 303.27. Purposes of this section are to help maintain orderly and efficient operation of the institution and to encourage people to tell the truth. On the outside, lying is only punished as a criminal offense if the lie was made under oath. However, in prison the contacts between inmates and state authorities are much more pervasive and a false statement, even one not made under oath, can have serious consequences.