(2) Except as provided in this subsection, the hearing may not be held until at least 2 working days after the inmate receives the approved conduct report, or later than 21 days after the inmate receives the approved conduct report. The inmate may request more time to prepare, and this request shall may be granted by the hearing officer unless there is a good reason to deny the request security director for good cause. The security director may extend the 21 day time period for good cause with notice to the inmate. An inmate may waive in writing the time limits provided in this section. Time shall be tolled for observation and control placements and for any full or partial day when the inmate is out of the institution on a temporary release order.
(3) The superintendent warden shall appoint one or more staff members to serve as hearing officers. Only persons who are eligible to serve on the adjustment committee may be appointed. A hearing officer with substantial involvement in the conduct report may not hold a hearing on that conduct report.
(4) At the hearing, a hearing officer shall review the conduct report and discuss it with the inmate. The inmate shall be provided with an opportunity to respond to the report and make a statement about the alleged violation. The hearing officer may question the inmate. The inmate has no right to a staff advocate, to confront witnesses or to have witnesses testify on his or her the inmate's behalf. If an inmate refuses to attend a hearing, the hearing may be conducted without the inmate being present.
(6) An inmate may appeal the disposition of a minor hearing within 10 days to the superintendent warden.
SECTION 108. DOC 303.76 (1), (3), (5), (6), and (7), are amended to read:
DOC 303.76 Hearing procedure for major violations. (1) When an inmate is alleged to have committed a major violation and the security director or designee has reviewed the conduct report pursuant to s. DOC 303.67, a copy of the approved conduct report shall be given to the inmate within 2 working days after its approval. The conduct report shall inform the inmate of all of the following:
(a) the The rules which he or she the inmate is alleged to have violated,.
(b) the The potential penalties or other potential results that may be imposed, including but not limited to removal from work release
, and.
(c) that he or she may exercise the The right the inmate has to a due process hearing or may to waive this right in writing.
(d) The inmate shall be informed that if he or she If the inmate waives the right to a formal due process hearing, he or she the inmate will be given an informal hearing under s. DOC 303.75.
(e) The inmate shall be informed that if If a formal due process hearing is chosen, the inmate may shall be informed of all of the following:
1. present The inmate may present oral, written, documentary and physical evidence, and evidence from voluntary eyewitnesses witnesses in accordance with this section and s. DOC 303.81;.
2. that he or she has
The inmate has a right to the assistance of a staff advocate in accordance with this section and s. DOC 303.79
;.
3. that the The adjustment committee may permit direct questions or require the inmate or his or her
the inmate's advocate to submit questions to the adjustment committee to be asked of the witness;.
4. that The adjustment committee may prohibit repetitive, disrespectful and irrelevant questions are forbidden; and.
5. that the The inmate may appeal the finding and disposition of the adjustment committee in accordance with sub. (7).
6. The inmate shall also be informed that ifIf he or she
the inmate refuses to attend a hearing, the hearing may be conducted without the inmate being present.
(3) A due process hearing shall be held no sooner than 2 working days or later than 21 days after the inmate receives a copy of the conduct report and hearing notice. An inmate may waive these time requirements in writing if the security director agrees to the waiver. Time shall be tolled for observation and control placements and for any full or partial day when the inmate is out of the institution on a temporary release order. The inmate may request additional time to prepare for the hearing, and the security director shall may grant the request unless there is a good reason to deny it
for good cause. The security director may extend the 21 day time period for good cause with notice to the inmate.
(5) The adjustment committee, as defined in s. DOC 303.82 shall conduct the due process hearing. If an inmate refuses to attend the hearing or disrupts the hearing, the hearing may be conducted without the inmate being present. At a due process hearing, the adjustment committee:
(a) the conduct report shall be read Shall read the conduct report aloud and.
(b) Shall provide all witnesses
who are requested and permitted to speak for or against the accused, including the accused himself or herself inmate and the staff member who wrote the conduct report, shall have a chance to speak.
(c) The adjustment committee may May require that physical evidence be offered.
(d) The adjustment committee may May permit direct questions or require the inmate or his or her advocate the inmate's advocate to submit questions to the adjustment committee to be asked of the witness.
(e) Repetitive May prohibit repetitive, disrespectful or irrelevant questions are forbidden.
(6) After the hearing the adjustment committee:
(a) shall Shall deliberate in private, considering consider only the evidence presented to it and the inmate's records.
(b) The institution is required to Shall establish guilt by a preponderance of the evidence.
(c) The adjustment committee may May find the inmate guilty or not guilty. A committee of 3 may find the inmate guilty if at least 2 of the 3 members find by a preponderance of the evidence that he or she is guilty, and if 2 agree upon a sentence, may sentence the inmate. A committee of 2 or of one may find the inmate guilty if the committee members unanimously find by a preponderance of the evidence that the inmate is guilty and may sentence the inmate if they are unanimous as to the sentence.
(d) If a sentence is not agreed upon, the matter may be referred May refer the matter to the superintendent
warden if the adjustment committee members do not agree on a sentence.
(e) The committee shall then recall the accused and advocate, if any, and announce its decision or the decision of the superintendent. The inmate shall be informed of the decision. A postponed or delayed decision may be communicated to the inmate.
(f) The accused and his or her
Provide the accused inmate and the inmate's advocate, if any, shall each receive a written copy of the decision with adequate reasons for the decision.
(7) (a) Any time within 10 days after either a due process hearing or after the inmate receives a copy of the decision whichever is later, an inmate who is found guilty may appeal the decision or the sentence, or both, to the superintendent warden.
(b) The superintendent warden shall review all records and forms pertaining to the appeal and make his or her decision within 10 days following receipt of the request.
(c) The superintendent's warden's decision shall be to one of the following:
1. Affirm the adjustment committee's decision and the sentence
;.
2. Affirm or modify all or part of the adjustment committee's decision but reduce the sentence in type or quality; or sentence.
3. Reverse the adjustment committee's decision, in whole or in part. In this case If the decision is reversed in whole, all records of the decision shall be removed from all offender-based files. If the decision is reversed in part, all records of the portion of the decision reversed shall be removed from all offender-based files. Records may be kept for statistical purposes only; or.
4. Return the case to the adjustment committee for further consideration or to complete or correct the record.
(d) The superintendent's warden's decision is final.
SECTION 109. DOC 303.76 (7) (e) is created to read:
DOC 303.76 (7) (e) The warden may at any time review the conduct report and act on it unilaterally as if there was an appeal.
SECTION 110. DOC 303.78 is repealed and recreated to read:
DOC 303.78 Due process: advocates. (1) (a) At each institution, the warden may designate or hire staff members to serve as advocates for inmates in disciplinary hearings at the institution, or staff members may volunteer to serve as advocates.
(b) If an inmate objects to the assignment of a particular advocate because the advocate has a known and demonstrated conflict of interest in the case, the warden shall assign a different staff member to serve as the inmate's advocate.
(2) The advocate's purpose is to help the accused inmate to understand the charges against the inmate and to help in the preparation and presentation of any defense the inmate has, including gathering evidence and testimony, and preparing the inmate's own statement. The advocate may speak on behalf of the accused inmate at a disciplinary hearing or may help the inmate prepare to speak.
(3) A training program for advocates should be conducted as often as possible. The training program should cover all of the following subjects:
(a) Proper role of the advocate.
(b) Techniques of interviewing the accused.
(c) Conduct covered and not covered in each disciplinary rule including the significance of lesser included offenses.
(d) Techniques of factual investigation.
(e) The elements of violations in the rules.
(f) Defenses.
SECTION 111. DOC 303.81 (1), (2), (3) (intro.), and (3) (a) are amended to read:
DOC 303.81 Due process hearing: witnesses. (1) A request by the inmate for witnesses to appear at the major violation hearing, including requests for the appearance of the staff member who signed the conduct report, may be made by the accused to the advocate who shall deliver the request to the security office. Except for good cause, an inmate may present no more than 2 witnesses in addition to the reporting staff member or members. If an inmate does not have an advocate, the request shall be sent directly to the security office. This request shall be made within 2 days of the service of notice
when no advocate is assigned and with the initial contact by the advocate when an advocate is assigned.
(2) After all witness requests have been received, the hearing officer security director shall review them
and do any investigation necessary to determine whether the witnesses should be called. The hearing officer may only call witnesses who possess relevant information. If a witness refuses to appear, the hearing officer shall determine if the refusal is justified. If the refusal is justified, the hearing officer shall note on the record the reason for the witness' refusal to appear.
(3) Witnesses requested by the accused who are staff or inmates shall attend the disciplinary hearing unless one of the following exist:
(a) There is a significant risk of bodily harm to the witness if
he or she the witness testifies; or.
SECTION 112. DOC 303.81 (3) (b) is repealed.
SECTION 113. DOC 303.81 (3) (c) is renumbered DOC 303.81 (3) (b) and amended to read:
DOC 303.81 (3) (b) The testimony is irrelevant to the question of guilt or innocence; or.
SECTION 114. DOC 303.81 (3) (d) is renumbered DOC 303.81 (3) (c) and amended to read:
DOC 303.80 (3) (c) The testimony is merely cumulative of other evidence and would unduly prolong the hearing; or
.
SECTION 115. DOC 303.81 (3) (e) is renumbered DOC 303.81 (3) (d).
SECTION 116. DOC 303.81 (4), (5), and (7), are amended to read:
DOC 303.81 (4) If an inmate witness will be unavailable due to hospitalization, transfer or release or if a staff member witness, who may be the officer who reported the rule violation, will be unavailable due to illness, no longer being employed at the location, being on vacation or being on a different shift, but there is no other reason to exclude the witness's testimony under sub. (3), then the hearing officer staff member shall attempt to get a signed statement from the witness to be used at the disciplinary hearing.
(5) If a witness's testimony would be relevant and useful to the adjustment committee but if the witness does not wish to testify, or and if testifying would pose a significant risk of bodily harm to the witness, the hearing officer may attempt to get a signed statement to be used at the disciplinary hearing.
(7) After determining which witnesses will be called for the accused inmate, the hearing officer shall notify the inmate of the decision in writing and schedule a time for a hearing when all of the following people can be present:
(a) Adjustment committee members;.
(b) Advocate, if any;.
(c) Officer who wrote the conduct report;, if requested.
(d) Other witnesses against the accused inmate
(, if any);.
(e) Accused inmate; and.
(f) Witnesses for accused inmate (
, if any).
SECTION 117. DOC 303.81 (7m) is renumbered DOC 303.81 (8) and is amended to read:
DOC 303.81 (8) In the case of inmate witnesses and the accused, an attempt should shall be made to avoid conflict with off ground activities, but these persons may be required to attend the hearing even if it conflicts with other activities.
SECTION 118. DOC 303.81 (9) is repealed.
SECTION 119. DOC 303.82 (1), (2), and (4) are amended to read:
DOC 303.82 Adjustment committee. (1) Due process disciplinary hearings shall be conducted by a
an adjustment committee of one, 2 or 3 staff members appointed by the superintendent warden. Persons eligible to serve on an adjustment committee are: the superintendent warden, assistant superintendents warden, supervisors, correctional officers, social workers, and any other equally responsible staff members. Efforts shall be made to place staff from diverse backgrounds on the multi-member adjustment committee. At least one member of every adjustment committee shall be a supervisor.
(2) No person who has personally observed or been a part of an incident which is the subject of a hearing may serve on the committee for that hearing. Committee members should find out shall determine the subject matter of the hearing in advance in order to allow replacement of committee members if necessary and thereby avoid the necessity of postponing the hearing. The security director who reviews the conduct report or classifies the offense, as required by ss. DOC 303.67 and 303.68 is not involved in the incident by reviewing the conduct report or classifying the offense to the extent that he or she is automatically disqualified from being on the adjustment committee.
(4) When a single hearing officer is sitting on the adjustment committee pursuant to sub. (1), or after the waiver of due process,
he or she the hearing officer has the same authority as given the adjustment committee under this chapter.
SECTION 120. DOC 303.83 (intro.) and (1) to (10) are amended to read:
DOC 303.83 Sentencing considerations. In deciding the sentence for a violation or group of violations, the supervisor making summary disposition or the adjustment committee or hearing officer who is holding the hearing shall may consider any of the following:
(1) The inmate's overall disciplinary record, especially during the last year;.
(2) Whether the inmate has previously been found guilty of the same or a similar offense, how often, and how recently;
.
(3) Whether the alleged violation created a risk of serious disruption at the institution or in the community;
.
(4) Whether the alleged violation created a risk of serious injury to another person;.
(5) The value of the property involved, if the alleged violation was actual or attempted damage to property, misuse of property, possession of money, gambling, unauthorized transfer of property, soliciting staff or theft;.
(6) Whether the inmate was actually aware that he or she the inmate was committing a crime or offense at the time of the offense;.
(7) The motivation for the offense;.
