Rule-Making Notices (Hearing Notices)

12. Changes battery and fighting to assault, aggravated assault and assault on staff to increase consistency in application of the rule and ensure decision makers have accurate information about dynamics of the offense.

13. Changes charges related to sexual behavior and assault to sexual conduct, sexual contact or intercourse, sexual assault, and sexual assault aggravated to more accurately reflect changes related to PREA and improve communication of actual dynamics of the offense.

14. Creates the offense of stalking to clearly identify inmate misconduct.

15. Creates the offense of taking a hostage in response to inmate conduct that was not currently addressed.

16. Modifies the elements of “disruptive conduct" as a violation to better capture behaviors that are disruptive to the orderly operation of facilities.

17. Modifies the elements of “unauthorized forms of communication" to better identify problematic conduct.

18. Modifies the elements of “possession, manufacture, or use of weapons" to include the use of an otherwise allowable property item as a weapon as a violation.

19. Creates the offense of “possession of tobacco" to reflect the ban on smoking and use of tobacco products.

20. Creates the offense of “possession of electronic communication or data storage devices" to address the added threat to security that the possession of this type of property poses.

21. Expands the elements of the offense of “unauthorized use of the mail" to include sending any item not allowed under this chapter and falsifying the name of the receiver or address.

22. Expands the coverage of the misuse of medications to include both prescription and nonprescription medications.

23. Requires consideration of an inmate's serious mental illness during due process hearings and disposition stage.

24. Clarifies how to impose a requirement for restitution when the actual amount is not known at the time of disposition.

25. Deletes the use of program segregation and adjustment segregation as penalties. The loss of good time associated with these penalties has not had a sufficient deterrent effect to warrant the extra work to recalculate release dates and the deletion eliminates a liberty interest and simplifies due process requirements.

26. Modifies the processes and terminology for disciplinary transactions from summary through full due process. Permits summary disposition for major violations. Modifies minor hearing process to be more similar to summary disposition. Limits inmate statements to 500 words on 2 sheets of paper. More clearly describes what an inmate may appeal.

27. Corrects references to DOC 303 in other DOC chapters.

Comparison with existing or proposed federal regulations

There are no federal regulations that regulate the activities addressed by the proposed rule.

Comparison with similar rules in adjacent states

Illinois:

Illinois rules concerning discipline apply to both incarcerated adults and juveniles. The rules in some cases have different requirements, depending on whether they apply to adults or juveniles. For example, disciplinary proceedings against an adult must be commenced within 8 days of service of a disciplinary report but only 4 days against a juvenile offender. (20 ILAC 504.30 (f)) Wisconsin has a separate set of rules which addresses incarcerated juveniles.

Illinois prohibits corporal punishment and disciplinary restrictions on diet, medical or sanitary facilities, mail, or access to legal materials. (730 ILCS 5/3-8-7 (b) (1); 20 ILAC 504.20 (c)) Wisconsin rules prohibit corporal punishment. (DOC 306.07 (1)) Illinois rules also require that the disciplinary restrictions on visitation, work, education, or program assignments and use of the library be as closely related as practicable to the abuse of such privileges. But the Illinois rule specifically excludes the applicability of this section to segregation or isolation of offenders for purposes of institutional control. (20 ILAC 504.20 (d))

Illinois requires that disciplinary actions resulting in the loss of good time credit or the eligibility to earn good time credit or disciplinary actions resulting in the imposition of disciplinary segregation and isolation are heard by a disciplinary board appointed by the director of prisons. Other disciplinary actions are heard at the institution level. (730 ILCS 5/3-8-7 (d) and (e)) Illinois prohibits any person who initiated a disciplinary charge from determining the disposition of the charge. (730 ILCS 5/3-8-7 (e) (1)) Wisconsin prohibits any person who has substantial involvement in the incident which is the subject matter of the hearing from serving on the disciplinary committee. (DOC 303.85 (2))

Illinois rules specify in detail the content of a disciplinary report. (20 ILAC 504.30 (d)) Wisconsin rules provide a more general description of the content of a conduct report. (DOC 303.67) The department has policies and procedures which specify the content of the report.

Illinois rules require service of the disciplinary report on the inmate within 8 days of the incident giving rise to the report. (20 ILAC 504.30 (f)) Wisconsin rules require service of a conduct report for a major offense within 2 working days of the security director's approval of the report. (DOC 303.80)

Illinois rules require that an inmate placed in temporary lockup (TLU) be reviewed within 3 days following placement. Illinois also requires that the inmate be interviewed regarding the placement within 14 days. The maximum period of time in TLU is 30 days. (20 ILAC 504.05 (b) and (c) (3) and (4)) Wisconsin requires a review of a TLU placement within 2 working days. The maximum period of time in TLU status is 21 days. This period may be extended by an additional 21 days by the administrator of the division of adult institutions. The status of an inmate placed in TLU must be reviewed every 7 days by the security director. (DOC 303.10)

Illinois rules require that if an inmate is found not guilty of a disciplinary offense, placement in TLU shall be terminated and the disciplinary report expunged from the inmate's records. A copy of the report shall be maintained in an expungement file. (20 ILAC 504.50 (4)) There is a comparable provision requiring the expungement of the disciplinary report following a hearing and a finding that the inmate did not commit the offense. (20 ILAC 504.80 (k) (1)) Wisconsin does not have a similar provision. (cf. DOC 303.88 (1) (b))

Illinois rules have a different procedure for inmates at correctional centers. (20 ILAC 504.60) Wisconsin does not have a similar provision.

Illinois rules provide for the composition of its adjustment committee (“to extent possible, a person representing the counseling staff; and at least one minority staff") and the composition of its program unit (employees who serve as hearing officers) (“at least one member of the unit shall be a minority staff member"). (20 ILAC 504.70) Wisconsin has no similar provision.

Illinois rules require that a disciplinary hearing be commenced within 14 days after commission of the offense unless the inmate is unable to participate in the hearing. (20 ILAC 504.80 (a)) Wisconsin requires that the hearing be held between 2 working days following the inmate being served with the approved or amended conduct report and 21 calendar days. The 21 calendar day period may be extended for any reason by the security director. (DOC 303.80 (3))

Illinois rules provide that questioning of witnesses is done by the submission of written questions which the hearing officer asks. Questions which are cumulative, irrelevant, or a threat to the safety of individuals or the security of the institution are not allowed. Similarly, an inmate's request to call witnesses may be denied if the testimony is deemed to be cumulative, irrelevant, or would jeopardize the safety or disrupt the security of the institution. (20 ILAC 504.80 (h) (2), (4), and (5)) Wisconsin permits the direct questioning of witnesses and the submission of written questions but prohibits repetitive, disrespectful, or irrelevant questions. (DOC 303.80 (5))

Illinois rules specifically state that an inmate is not entitled to retained or appointed counsel. Also, an inmate may only request the assistance of a staff member in the preparation of his or her defense if the inmate is illiterate or does not speak English or when other circumstances exist that preclude the inmate from adequately preparing his or her defense. (20 ILAC 504.80 (i)) Wisconsin does not limit the assignment of staff representatives. (DOC 303.83)

Illinois rules specify that the provisions dealing with penalties following a hearing do not restrict or limit the Illinois department of corrections from administratively changing an inmate's job, educational, program, or housing assignment, to restrict privileges, or to transfer the inmate to another institution. (20 ILAC 504.80 (k) (5)) Wisconsin has a similar provision.

Illinois rules provide for the director, deputy director or chief administrative officer to remand a decision to the administrative committee for new proceedings if the proceedings are found to be defective due to: procedural error, lack of impartiality, improper exclusion of witnesses, failure to provide exonerating information to the inmate prior to the hearing. In addition, a new proceeding may be ordered in other circumstances as determined by one of the named officials. Finally, one of the named officials may request clarification, correction, or additional information. (20 ILAC 504.90) Wisconsin has no similar provision. However, Wisconsin provides for an inmate appeal process (DOC 303.82). In addition, if an inmate is not satisfied with the decision following appeal, the inmate may file an inmate complaint (Ch. DOC 310). At any time, the warden may review the conduct report (DOC 303.91).

Illinois rules limit the penalty for multiple offenses arising out of one incident to the maximum penalty for the most serious offense of which the inmate is found guilty. (20 ILAC 504.110 (a)). Wisconsin has a similar provision (DOC 303.87(2)).

Illinois has a provision for the placement of an inmate into indeterminate segregation. (20 ILAC 504.115) Wisconsin has a provision for administrative confinement which is a non-punitive status (Ch. DOC 308).

Illinois rules provide for credit against the term of segregation placement for the time spent in TLU. (20 ILAC 504.120 (a)) Wisconsin specifically does not permit the crediting of time spent in TLU. (DOC 303.87 (2) (f)) Wisconsin has a process to reduce time spent in segregation based on adjustment.

Illinois rules provide for the reduction in grade for inmates in centers who are found guilty of a disciplinary offense. (20 ILAC 504.130) Wisconsin has no similar provision.

Illinois rules list offenses in Appendix A and penalties in Appendix B. (20 ILAC 504 App. A and B) Wisconsin lists and defines offenses and sets maximum penalties based on major and minor offenses.

Iowa:

Iowa statutes have one provision which addresses inmate disciplinary procedures. ICA s. 904.505 (1) provides that inmates who disobey disciplinary rules of the institution shall be punished in accordance with the following: (1) to ensure that sanctions are imposed only at such times and to such a degree as is necessary to regulate inmate behavior and to promote a safe and orderly institution; (2) to control inmate behavior in an impartial and consistent manner; (3) to ensure that disciplinary procedures are fair and that sanctions are not capricious or retaliatory; (4) to prevent the commission of offenses through the deterrent effect of available sanctions; (5) to define the elements of each offense and the penalties which may be imposed for violations, in order to give a fair warning of prohibited conduct; and (6) to provide procedures for preparation of report or disciplinary actions, for conducting disciplinary hearings, and for processing of disciplinary appeals.

ICA s. 904.505 (2) requires the warden to maintain a register of all penalties imposed on inmates and the penalties imposed.

ICA s. 904.505 (4) provides that a reasonable administrative fee for tiling a report of a major disciplinary rule infraction for which an inmate is found guilty may be charged. The fee must be deposited in the general fund of the state.

Iowa does not have administrative rules which govern the discipline of inmates in prison. The Iowa department of corrections has issued a policy and procedure which addresses rules and discipline in institutions. (Policy Number IO-RD-01 (eff. 4/2009))

Michigan:

Michigan rules provide that a violation of department rules by an inmate is classified as a major or minor misconduct on the basis of the seriousness of the act and the disciplinary sanction imposed. (Mich. Admin. Code R. 791.5501 (1)) Wisconsin has a similar provision. An inmate charged with a major misconduct is entitled to a formal hearing. An inmate charged with a minor misconduct is entitled to a fact-finding hearing. (Mich. Admin. Code R. 791.5501 (2)) The Michigan department of corrections has a hearings division which conducts administrative hearings regarding inmates. (Mich. Admin. Code R. 791.3301) Wisconsin also differentiates between the processes for handling major and minor violations.

All hearings have two phases: fact determination phase and disposition phase. (Mich. Admin. Code R. 791.3305) At a fact finding hearing, an inmate shall be permitted to be present and speak on his or her own behalf and to receive a copy of any department document specifically relevant to the hearing unless disclosure of the document would threaten the order and security of the institution or a person. An inmate may waive the fact finding phase. (Mich. Admin. Code R. 791.3310) While Wisconsin's rules are not identical, there is a similarity between the two processes.

At least 24 hours prior to a formal hearing, an inmate shall receive written notice of a formal disciplinary hearing. The notice shall include the charges, a description of the circumstances giving rise to the hearing, and the date of the hearing. The inmate shall identify necessary witnesses the inmate wishes to have interviewed, request documents specifically relevant to the issue for the hearing, and request assistance of a staff investigator to gather evidence or speak for the inmate. An inmate may waive the 24 hour notice requirement in writing. (Mich. Admin. Code R. 791.3315 (1) – (3))

At a formal hearing the inmate has the right to be present and offer evidence, to compel disclosure of documents specifically relevant to the issue being heard, unless disclosure poses a threat to safety and security, to call witness who can give necessary, relevant, and material evidence, unless to do so would be unduly hazardous to institutional or safety goals, to present the report of the staff investigator, to submit questions to the hearing officer to ask of witnesses, and to request disqualification of a hearing officer for personal bias based on an affidavits containing specific evidence of personal bias. (Mich. Admin. Code R. 791.3315 (6)) The hearing officer shall render a written decision or recommendation in every case, setting forth the reasons for the decision, a statement of facts, and the evidence relied upon, and any sanctions imposed. With 48 hours of the conclusion of a hearing on a major misconduct charge the decision shall be post for staff information the name of the inmate charged, the violations charged and whether the inmate was found guilty. The information should be posted in an area accessible to staff but not usually accessible to inmates. (Mich. Admin. Code R. 791.3315 (8) and (9))

An inmate may appeal a determination made at a fact finding or informal hearing. The inmate must indicate orally his or her intention to appeal at the conclusion of the hearing and within 24 hours of receiving the written decision file a written appeal. The procedures are found in policies and procedures, not the rules. (Mich. Admin. Code R. 791.3320 (1)) An inmate may appeal a determination made at a formal hearing within 30 days of the determination. Appeals shall be reviewed based on a written summary or record of the hearing. The decision may be affirmed, reversed, or remanded for a new hearing. (Mich. Admin. Code R. 791.3320 (2) and (4))

Michigan rules provide for the earning of good time and disciplinary credit. Violations of prison rules may result in the forfeiture of additional earned and special good time and disciplinary credits. (Mich. Admin. Code R. 791.5513 (1)) In addition, an inmate may be subject to disciplinary time when he or she is found guilty of a violation of prison rules. The range of time includes: all disciplinary time for a homicide; 180 days of disciplinary time for any act that constitutes a felony under state law, assault resulting in serious physical injury, escape, possession of a weapon, inciting a riot or a strike or rioting or striking, and sexual assault; 35 days of disciplinary time for assault and battery, creating a disturbance , possession of dangerous contraband, possession of money, substance abuse, failure to disperse; 15 days of disciplinary time for bribery, fighting, sexual misconduct, threatening behavior, and smuggling; 10 days disciplinary time for destruction or misuse of property with value of $10.00 or more, disobeying a direct order, insolence, theft or possession of stolen property, and unauthorized occupation of a cell or room; 7 days of disciplinary time for failure to maintain employment, gambling or possession of gambling paraphernalia, interference with the administrative rules, out of place, possession of forged documents or forgery. (Mich. Admin. Code R. 791.5515 (2))

If an inmate is found guilty of more than one violation arising from the same incident, the disciplinary time must run concurrently. (Mich. Admin. Code R. 791.5515 (3)) Disciplinary time may be reduced for exemplary good conduct. However, the director of the department of corrections must establish the amount of disciplinary time that may be reduced for exemplary good conduct. (Mich. Admin. Code R. 791.5515 (4)) If an inmate is subsequently found guilty of a major misconduct, the some portion of the reduced time may be restored. (Mich. Admin. Code R. 791.5515 (5))

Minnesota:

Minnesota statutes permit the imposition of a sanction on an inmate who refuses to perform an available work assignment either through the loss of good time or by the serving of disciplinary confinement period. (MSA s. 243.18) Minnesota statutes also permit the development of disciplinary sanctions for an inmate who submits a frivolous or malicious claim to a court or licensing agency or who is determined by a court or licensing agency to have testified falsely or to have submitted false evidence. The sanctions may include loss of privileges, punitive segregation, loss of good time, or adding discipline confinement time. (MSA s. 244.035) The department of corrections operating statute authorizes the commissioner of corrections to enact rules and procedures that govern the operations of prisons. (MSA s. 241.01)

Minnesota does not have administrative rules which govern the discipline of inmates in prison. The Minnesota department of corrections has issued a policy which addresses rules and discipline in prisons. (Polices, Directives and Instructions Manual, Policy 303.010 (eff. 9/1/2005))

Summary of factual data and analytical methodologies

The department of corrections has determined that the rule will not have a significant economic impact on a substantial number of small businesses since the rule does not regulate small businesses as that term is defined in s. 227.114, Stats.

Analysis and supporting documents used to determine effect on small business

Not applicable.

Effect on Small Business

Not applicable.

Fiscal Estimate

Assumptions used in arriving at fiscal estimate

DOC Rule 303 is the Administrative Rule relating to inmate conduct, inmate discipline, and procedures for the imposition of discipline. This rule has not been updated since December 2000.

This revision repeals, amends, and creates several definitions related to offenses for which inmates may be disciplined to increase consistency in application of the rule and to more clearly identify inmate misconduct. Additional offenses for which inmates may be disciplined are created to reflect changes in practice and technologies. The use of program segregation and adjustment segregation as penalties is eliminated, as the loss of good time associated with these penalties has had an insufficient deterrent effect. The revised rule eliminates due process hearings for minor offenses and allows inmates to voluntarily waive the right to due process hearings for major offenses, consistent with due process requirements established by the courts. Finally, the rule requires consideration of an inmate's serious mental illness during due process hearings and the disposition stage.

In FY10, the Division of Adult Institutions incurred $27,663,400 in overtime costs. While the Department can not identify the exact amount of Salary & Fringe cost avoided through passage of this rule, in each case, the proposed rule may result in more effective allocation of DOC staff time.

In calendar year 2010, 34 lawsuits occurred arising from disciplinary actions. Each lawsuit filed requires the use of DOC staff time to collect information as part of a court record. It is anticipated that the proposed revised rule clarifying definitions related to disciplinary actions may result in fewer lawsuits, lawsuits resolving more quickly, or due process hearing outcomes which are more defensible in a court of law.

State fiscal effect

Decrease costs.

Fund sources affected

GPR.

Affected Chapter 20 Appropriations

20.410 (1) (a).

Local fiscal effect

No local government costs.

Agency Contact Person

Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925; [phone]; FAX [phone]; [e-mail].

Text of Rule

SECTION 1.   DOC 303 is repealed and recreated to read:

Chapter DOC 303
DISCIPLINE

Subchapter I — General Provisions

DOC 303.01   Applicability and purposes.

DOC 303.02   Definitions.

DOC 303.03   Lesser included offenses.

DOC 303.04   Conspiracy.

DOC 303.05   Attempt.

DOC 303.06   Aiding and abetting.

DOC 303.07   Institutional regulations and procedures.

DOC 303.08   Notice of disciplinary rules.