Wisconsin Legislature: Register539B

There are no long-range fiscal implications anticipated.

Notice of Hearing

Corrections

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a), 302.07, 302.08, 302.11 (2) and 302.04, Stats., the Department of Corrections proposes the following rule relating to security.

Hearing Information

Date & Time	Location
December 13, 2000 Wednesday 6:00 P.M. to 8.00 P.M.	UW-Milwaukee UWM- Union Alumni Fireside Lounge, First Floor 2200 E. Kenwood Blvd. Milwaukee, Wisconsin

The public hearing sites are accessible to people with disabilities.

Analysis Prepared by the Dept. of Corrections

Some provisions of the department of corrections administrative rule relating to security have not been updated since the rule was created in 1980. With over 20 years of experience working with the rule, the department proposes to update the rule.

Background

DOC 306 governs security standards and practices at state correctional institutions. As technology, science, population and government evolve over time, security standards and practices must adapt to those changes. We ultimately grow wiser and more efficient based on new knowledge and procedures. What was thought routine, necessary or even effective correctional practice in 1980 may not be accurate today.

For example, our prison population has grown from 1,930 in 1976 to more than 18,000 in 2000, and has a projected population of more than 27,000 in the year 2001. This enormous increase in prisoners, along with their increased level of sophistication, has placed a greater burden on correctional staff and has created the possibility for a more hazardous environment. In many ways, Wardens and staff no longer enjoy the luxury of time that once afforded them the ability to maneuver bureaucratic requirements. Correctional staff must now make urgent decisions regarding the best way to ensure staff, inmate and visitor safety and security. These situation and decisions are infinitely different from those of 20 years ago when the current rule was promulgated. The changes in this rule make it possible for inmate rights and needs to be protected without compromising institution security.

Definitions

•Removes the definitions for “Director of the bureau of correctional health services," “Administrator of the division of program services," “Division of program services," “CN chloroacetophenone and CS-o-chlorobenzyl malononitrile."

•Adds definition of “Authority," and “Issuance of firearms," adds “X-ray" to definition of “body cavity search," and adds “hair, fingernails, saliva, or semen" to definition of “body contents search.

•Changes the terms “Voluntary Confinement" to “Protective Confinement," “chemical agent" to “incapacitating agent," and changes the definition of “Superintendent" to “Warden."

Reports/Records/Plans

Throughout this rule change, requirements regarding keeping reports, records, and plans are maintained, while the enumerated contents are eliminated. The Department's Internal Management Procedures will dictate what information is necessary and these documents will continue to be kept in a consistent manner. The following is a list of the changes in this rule:

•Maintains requirement for an incident report, but removes language dictating the contents of the report.

•Maintains requirement for a report regarding escape, but removes language detailing information required to be included in the report.

•Maintains requirement for staff to provide report on a visitor search, but deletes enumerated requirements of the report.

•Maintains requirement that the institution keep a record of the use of restraints, but removes language listing what information the record must contain.

•Maintains requirement that a record of search be kept, but deletes language specifying material that must be included in the report.

•Maintains requirement for institution plans regarding escape, but removes requirement that the plans are filed with the administrator and removes language specifying the contents of the plan.

•Maintains requirement for emergency preparedness and disturbance plans, but deletes language detailing the contents.

Protective Confinement

By removing the requirements that an inmate remain in protective confinement for at least 72 hours unless security director approves prior release and that the inmate be released automatically after the 72 hours, this rule clarifies that determining the length of stay in protective confinement is the security director's role. In order to facilitate protection of inmates at risk, this rule removes the artificial figure of 72 hours and grants the security director the ability to regulate protective placement as long as the inmate remains at risk.

Issuance and Use of Firearms

This rule allows an authority other than the Warden to issue firearms to staff and recognizes that circumstances arise within the institution where the warden may be unavailable at a time when firearms must be issued in order to maintain security. This rule change provides a process whereby designated staff may have authority to act in the warden's absence. DOC Security Internal Management Procedures and Emergency Preparedness Manual will specify the line of succession and circumstances under which firearms authorization may occur.

This rule requires that staff actions prior to discharging a firearm are consistent with mandated comprehensive and uniform training requirements.

Incapacitating Agents

Science changes so rapidly and now provides us with a wider variety of incapacitating agents that are often times safer and more effective in controlling inmates. Department Security Internal Management Procedures will provide a wider variety of situation-appropriate alternatives in a graduated force option continuum. We are no longer limited to the narrow selection of “chemicals" enumerated in the current rule and it is futile, given sciences speedy advances, to attempt to continue enumerating incapacitating agents within the rule.

To ensure safety and proper application, this rule requires that only trained staff use incapacitating agents and grants general authority for their use under certain circumstances. The current rule reads so as to allow any staff member, even those not trained in the use of these agents, to use an incapacitating agent so long as it is done in the presence of a trained staff member. This rule ensures that the staff member actually administering or using the agent is properly trained, thereby ensuring greater safety to those involved in the situation.

This rule requires that the Division of Adult Institutions provide incapacitating agent training which includes safe handling, legal use, division policies and procedures, fundamentals of using and when incapacitating agents may and shall be used. In light of this requirement, the language dictating the procedure for using incapacitating agents is unnecessary and is removed.

The rule adds the following as situations for which staff may use incapacitating agents:

a. To apprehend an inmate who has escaped

b. To change the location of an inmate

c. To control a disruptive inmate

d. To prevent unlawful damage to property

e. To enforce a departmental rule, policy or procedure or an order of a staff member

Mechanical Restraints

This rule permits use of mechanical restraints to immobilize inmates for the protection of property. Occasionally, highly destructive inmates do considerable damage to state and personal property. For example, inmates already in segregation manage to destroy light fixtures, plumbing, electrical boxes, windows, etc. This type of destruction is not only costly, but obviously jeopardizes the welfare of staff and inmates. Such inmates also use this behavior to create weapons and escape confinement.

Recognizing a need in today's changing institutions, this rule permits Wardens the discretion in determining if security warrants use of mechanical restraints for movement within the institution. Situations in which the mechanical restraints are necessary for movement within the institution are too numerous and various to attempt listing in the rule. To do so would unnecessarily and unduly limit the ability of the Warden to ensure safety and security within the institution by responding to individual circumstances with the appropriate security measures. For example, mechanical restraints may be necessary during institution lock-downs, inclement weather such as severe fog, electrical blackouts, etc. There are a number of situations that may be unanticipated and due to circumstances beyond the Department's control. The Warden must have the ability to react in these situations.

Escapes

To ensure staff safety and limit liability, staff may no longer be authorized to use their own cars to pursue escapees.

This rule changes institution searches from permissive to mandatory and establishes the Department's clear intention to periodically search entire institutions

The effectiveness and validity of this type of search is dependent upon eliminating the requirement that inmates be given advance notice. Searches are considered a regular and necessary part of maintaining institution security and this rule removes the administratively burdensome requirement for housing unit supervisors or shift supervisors to authorize searches of inmate living quarters.

The current rules allow inmates to conceal contraband under the guise of “legal material" by forbidding staff to read and review this alleged legal material. This rule will allow staff, during a living quarters search, to examine legal materials to the extent necessary to determine that the item is, in fact, legal material and does not contain contraband.

This rule enumerates circumstances under which a strip search may be conducted and expands the reasons for conducting a body contents search.

This rule adds “biological specimen analysis" as a type of search in response to new laws allowing and/or requiring certain testing such as DNA.

This rule maintains the requirement that staff have reasonable grounds to search an inmate, but eliminates listed factors for staff to consider in deciding if reasonable grounds exist. Such factors will continue to be the subject of staff training and detailed in the department's internal policies and procedures.

This rule deletes the arbitrary recommendations for consideration in determining whether or not to conduct a search. This determination is best left to the Department's policies and procedures due to the changing circumstances and the variety of situations correctional staff encounter in today's institutions.

This rule also deletes the requirement that the security director of each correctional institution submit monthly reports to the administrator regarding seized contraband. These reports continue to be maintained at institutions and the Administrator has access to these reports on demand. To continue keeping records at DOC Central Office, in addition to the institutions, would be redundant and an unnecessary use of time and resources.

Visitors

Allows institutions the option to store visitors' personal property that may not be carried into the institution. There may be instances when visitors have too much personal property to be securely stored given minimal space and resources available.

This rule requires Warden approval for strip searches or personal searches of visitors.

Persons under the Influence of Intoxicating Substances

Occasionally, visitors are found with drugs, or become disruptive due to apparent influence of intoxicating substances. The Warden currently has statutory authority to arrest and detain under sec. 301.29(2) Wis. Stats. In practice, the Department does not have arresting protocols and therefore handles these procedures through law enforcement. This rule allows the Warden to deny a visit and to detain a visitor and inform law enforcement if the visitor appears to be under the influence of an intoxicating substance. This rule also allows the Warden to detain staff members, and to notify law enforcement, who appear to be under the influence of an intoxicating substance.

Text of Rule

DOC 306.01 Applicability and purpose. Pursuant to authority vested in the department by ss. 301.02, 301.03 (2), 302.07 and 227.11 (2), Stats., the department adopts this chapter for purposes of establishing security standards and practices at state correctional institutions.

DOC 306.02 Definitions. In this chapter:

(1) “Administrator" means the administrator of the division or designee.

(2) “Authority" means the highest-ranking individual available in the institution, based on the written institution line of succession.

(3) “Bodily injury" means physical injury, illness, or any impairment of physical condition.

(4) “Deadly force" means force which the user reasonably believes will create a substantial risk of causing death or great bodily injury to another.

(5) “Department" means the department of corrections.

(6) “Disciplinary hearing" means a hearing authorized under ch. DOC 303 for the disciplining of inmates for misconduct.

(7) “Disturbance" means any of the following:

(a) An assault on any person by 2 or more inmates.

(b) The taking of a hostage by an inmate.

(d) The refusal by 2 or more inmates, acting in concert, to comply with an order.

(e) Any words or acts which incite or encourage inmates to do any of the above.

(8) “Division" means the division of adult institutions, department of corrections.

(9) “Emergency" means an immediate threat to the safety of the public, staff or inmates of an institution, other than a disturbance. An emergency may include, but is not limited to the following:

(a) A public health threat.

(b) A utility malfunction.

(d) A bomb threat or explosion.

(e) An employee job action.

(f) Any natural disaster.

(g) A civil disturbance.

(h) Inmate escape.

(10) “Force" means the exercise of strength or power to overcome resistance or to compel another to act or to refrain from acting in a particular way.

(11) “Great bodily injury" means bodily injury which creates a high probability of death, serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

(12) “Mechanical restraint" means a commercially manufactured device approved by the department and applied to impede free movement of the inmate.

(13) “Non-deadly force" means force which the user reasonably believes will not create a substantial risk of causing death or great bodily injury to another.

(14) “Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable.