DOC 303.81(3)(b) (b) Provide the inmate with an opportunity to respond to the report and make a verbal statement about the alleged violation. No written statement by the accused inmate may be submitted.
DOC 303.81(3)(c) (c) Permit the offering of relevant evidence.
DOC 303.81(3)(d) (d) Mark all documentary and physical evidence received into evidence from the accused as “Submitted By The Inmate."
DOC 303.81(4) (4)Attendance. If an inmate refuses to attend the hearing or disrupts the hearing and is removed, the inmate forfeits the right to provide a statement or evidence. The hearing officer shall administratively review the conduct report and render a decision based upon the available evidence.
DOC 303.81(5) (5)Place. The due process hearing may be held in person, by telephone, video conferencing or other virtual communication means at the discretion of the hearing officer.
DOC 303.81(6) (6)Decision. After the hearing the hearing officer shall do all of the following:
DOC 303.81(6)(a) (a) Consider all relevant information.
DOC 303.81(6)(b) (b) Render a decision on each charge.
DOC 303.81(6)(c) (c) Establish guilt based on a finding that it was more likely than not that the inmate committed the act.
DOC 303.81(6)(d) (d) Find the inmate guilty or not guilty on each charge and impose a disposition if found guilty.
DOC 303.81(6)(e) (e) Consider any of the inmate's defenses or other mitigating factors.
DOC 303.81(6)(f) (f) Inform the inmate of the decision.
DOC 303.81(6)(g) (g) Provide the accused inmate a written copy of the decision with reasons for the decision.
DOC 303.81 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15; correction in (4) (title) made under s. 13.92 (4) (b) 1., Stats., Register September 2014 No. 705.
DOC 303.82 DOC 303.82Appeal of contested major or minor disposition or contested major waiver.
DOC 303.82(1) (1) The inmate may appeal a disciplinary decision under s. DOC 303.77, 303.80, or 303.81, including procedural errors, to the warden within 10 days after the inmate receives a copy of the decision.
DOC 303.82(2) (2) The warden shall review all records and forms pertaining to the appeal and make the decision within 60 days following receipt of the request for appeal.
DOC 303.82(3) (3) The warden's decision shall be one or more of the following:
DOC 303.82(3)(a) (a) Affirm the decision.
DOC 303.82(3)(b) (b) Modify all or part of the decision.
DOC 303.82(3)(c) (c) Reverse the decision, in whole or in part.
DOC 303.82(3)(d) (d) Return the case for further consideration, to complete or correct the record, to correct any procedural error, or for rehearing.
DOC 303.82(4) (4) The warden's decision is final regarding the sufficiency of the evidence. An inmate may appeal claims of procedural errors as provided under s. DOC 310.06 (2).
DOC 303.82 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15; correction in numbering in (4) made under s. 13.92 (4) (b) 1., Stats., Register September 2014 No. 705; CR 16-054: am. (4), Register March 2018 No. 747 eff. 4-1-18.
DOC 303.83 DOC 303.83Due process hearing: staff representative.
DOC 303.83(1)(1) At each institution, the warden shall designate staff representatives for inmates in disciplinary hearings at the institution.
DOC 303.83(2) (2) If an inmate or staff representative provides information and evidence to the warden that there is a conflict of interest in the case that would impair a staff representative's ability to perform his or her duties, the warden shall evaluate the information and evidence to determine if a different representative should be assigned.
DOC 303.83(3) (3) The role of the staff representative is to help the accused inmate understand the charges against the inmate and to provide direction and guidance regarding the disciplinary process. The staff representative may use discretion in the performance of this role, including gathering relevant evidence and testimony and preparing the inmate's own statement. The staff representative may speak on behalf of the accused inmate at a disciplinary hearing or may help the inmate prepare to speak.
DOC 303.83 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15; correction in (title) made under s. 13.92 (4) (b) 2., Stats., Register September 2014 No. 705.
DOC 303.84 DOC 303.84Due process hearing: witnesses.
DOC 303.84(1)(1) The accused inmate may make a request to the security director for no more than two identified witnesses in addition to the reporting employee and shall explain the relevance of the witness testimony. The inmate shall make this request within two days of the service of notice of major disciplinary hearing rights. The security director may waive the two day time limit for good cause.
DOC 303.84(2) (2) After all witness requests have been received, the security director shall review them to determine whether the witnesses possess relevant information and shall be called.
DOC 303.84(3) (3) Written witness statements shall only be accepted if approved by the hearing officer. The hearing officer may consider a legibly printed written statement limited to 500 words on no more than two sheets of paper, a transcript of an oral statement, or a recorded statement.
DOC 303.84(4) (4) Witnesses requested by the accused who are staff or inmates shall attend the disciplinary hearing unless one of the following exists:
DOC 303.84(4)(a) (a) The risk of harm to the witness if the witness testifies.
DOC 303.84(4)(b) (b) The witness is unavailable. Unavailability means death, transfer, release, hospitalization, or escape in the case of an inmate; unavailability means death, illness, vacation, no longer being employed at that location, or being on a different shift in the case of an employee.
DOC 303.84(4)(c) (c) The testimony is irrelevant to the question of guilt or innocence.
DOC 303.84(4)(d) (d) The testimony is merely cumulative of other evidence and would unduly prolong the hearing.
DOC 303.84(5) (5) If the security director finds that testifying would pose a risk of harm to the witness, the hearing officer may consider a confidential statement signed under oath from that witness without revealing the witness's identity or a signed statement from an employee getting the statement from that witness. The hearing officer shall reveal the contents of the statement to the accused inmate, except the hearing officer may edit or summarize the statement to avoid revealing the identity of the witness. The hearing officer may question a confidential witness if the witness is available.
DOC 303.84(6) (6) The hearing officer may consider written statements that can be corroborated in one of the following ways:
DOC 303.84(6)(a) (a) By other evidence which substantially corroborates the facts alleged in the statement, including an eyewitness account by an employee or circumstantial evidence.
DOC 303.84(6)(b) (b) By evidence of a very similar violation by the same inmate.
DOC 303.84(6)(c) (c) Two confidential statements by different persons may be used to corroborate each other.
DOC 303.84(7) (7) If it is not possible to get a signed statement in accordance with subs. (3) and (5), the hearing officer may consider other evidence of what the witness would say if present.
DOC 303.84(8) (8) After determining which witnesses shall be called for the accused inmate, staff shall notify the inmate of the decision in writing.
DOC 303.84(9) (9) Witnesses other than inmates or employees may not attend hearings but the staff representative with the hearing officer's permission may contact them. The hearing officer may designate a staff member to interview the witnesses and report to the hearing officer.
DOC 303.84(10) (10) The hearing officer may call additional witnesses as deemed necessary.
DOC 303.84(11) (11) After a decision has been reached by the hearing officer, and if a finding of guilt results, the hearing officer shall forward restricted or confidential information to the security director for retention in a restricted file.
DOC 303.84 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15.
DOC 303.85 DOC 303.85Disposition considerations.
DOC 303.85(1) (1) In deciding the disposition for a violation or group of violations, the supervisor making uncontested dispositions or the hearing officer may consider any of the following:
DOC 303.85(1)(a) (a) The inmate's overall disciplinary record, especially during the previous 12 months.
DOC 303.85(1)(b) (b) The inmate's disciplinary record of the same or similar offenses.
DOC 303.85(1)(c) (c) The risk of serious disruption at the institution or in the community caused by the violation.
DOC 303.85(1)(d) (d) The risk of serious injury created by the violation.
DOC 303.85(1)(e) (e) The value of the property involved.
DOC 303.85(1)(f) (f) The risk of serious financial impact caused by the violation.
DOC 303.85(1)(g) (g) Whether the inmate was actually aware that the inmate was committing a crime or offense at the time of the offense.
DOC 303.85(1)(h) (h) The motivation for the offense.
DOC 303.85(1)(i) (i) The inmate's attitude toward the offense and toward the victim, if any.
DOC 303.85(1)(j) (j) Mitigating factors, including coercion, family difficulties which may have created anxiety, and any special circumstances.
DOC 303.85(1)(k) (k) Psychological input as appropriate regarding mental health status of seriously mentally ill inmates at the time of the behavior.
DOC 303.85(1)(L) (L) The risk to the security of the institution, inmates, employees or the community caused by the violation.
DOC 303.85(1)(m) (m) Any other relevant factors.
DOC 303.85(2) (2) A minor penalty may be imposed for a violation where a major penalty could be imposed.
DOC 303.85(3) (3) Restitution may be imposed in addition to any other penalty.
DOC 303.85(4) (4) Any combination of penalties may be imposed.
DOC 303.85 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15.
DOC 303.86 DOC 303.86Recordkeeping.
DOC 303.86(1) (1) The department may keep records of disciplinary infractions in an inmate's case record only if one of the following applies:
DOC 303.86(1)(a) (a) The inmate was found guilty by uncontested disposition procedure.
DOC 303.86(1)(b) (b) The inmate was found guilty by a supervisor or hearing officer.
DOC 303.86(2) (2) The department shall make necessary corrections to the record as required by appeal.
DOC 303.86(3) (3) The department shall take necessary steps to remove any record of a conduct report if there is an order to expunge.
DOC 303.86(4) (4) The department may keep conduct reports which have been dismissed or in which the inmate was found not guilty for statistical purposes, and security reasons, but the department may not consider them in making program assignment, transfer, or release decisions and the department may not include them in any inmate's record.
DOC 303.86 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15.
DOC 303.87 DOC 303.87Evidence.
DOC 303.87(1) (1) Evidence is relevant if the evidence makes it appear more likely or less likely that the inmate committed the offense of which the inmate is accused.
DOC 303.87(2)(a)(a) A hearing officer may consider any relevant evidence, whether or not it would be admissible in a court of law and whether or not any violation of any state law or any DOC administrative code provision occurred in the process of gathering the evidence.
DOC 303.87(2)(b) (b) A hearing officer may refuse to hear or admit relevant evidence for any of the following reasons:
DOC 303.87(2)(b)1. 1. Unreliable.
DOC 303.87(2)(b)2. 2. Marginally relevant.
DOC 303.87(2)(b)3. 3. Unduly cumulative or repetitious.
DOC 303.87(2)(c) (c) Request for evidence must be made within two days after the service of notice of major disciplinary hearing rights. This time frame may be extended by the security director for good cause.
DOC 303.87(3) (3) The institution shall place the original conduct report and all due process documents in the inmate's record, excluding evidence which shall be maintained in accordance with department policy.
DOC 303.87 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15.
DOC 303.88 DOC 303.88Harmless error. If staff does not adhere to a procedural requirement under this chapter, the error is harmless if it does not substantially affect a finding of guilt or the inmate's ability to provide a defense.
DOC 303.88 History History: CR 11-022: cr. Register September 2014 No. 705, eff. 1-1-15.
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.