WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULE MAKING ORDER
The Wisconsin Department of Corrections proposes an order to amend DOC ss. 306.10 (3), 308.04 (12) (a), 309.466 (1), 313.02 (2) (c), 313.05 (2) (a), 313.07 (7), 324.04 (1), 324.05 (4), 324.13 (7), 325.07 (2) (d), 326.04 (1), 327.05 (4), 327.05 (8), 327.06 (8), 327.08 (4), 330.03 (4), 330.08, 333.04 (1) (d), 333.06 (2), 333.10 (2); and to repeal and recreate chapter DOC 302, relating to inmate classification, sentence and release provisions.
B. Statutory Authority to Promulgate the Rule: ss. 227.11 (2), Stats.
C. Explanation of agency authority: The department of corrections is responsible for the custody of all inmates, including their safety and security in prisons and the determining the duration of their period of confinement based on the sentence imposed by a court.
D. Related statutes or rules: Chapters DOC 303, 304, 306, 308, 309, 310, 311, 313, 314, 316, 324, 325, 326, and 327, relating to the supervision of inmates.
E. Plain Language Analysis: The rule:
1. Reorganizes and updates the rule chapter.
2. Creates three subchapters: General Provisions, Inmate Classification, Sentence and Release Provisions.
3. Repeals the following definitions: A&E, certain earned release, IS, program or treatment, and program review.
4. Amends the following definitions: administrator, agent, assaultive activity, director, classification section chief, classification specialist, custody classification, DAI, DCC, extended supervision, institution, program need, office of victim services and programs, PRC, positive adjustment time, program review committee, secretary, and security classification.
5. Creates the following definitions: admission to DAI, applicable percentage, bifurcated sentence, bureau of offender classification and movement, challenge incarceration program, discretionary parole, discretionary parole violator, disturbance, earned release program, emergency, extended supervision violator, extra good time, extraordinary health condition, good time, in custody, initial classification, inmate, interstate correctional compact, life sentence, mandatory release, mandatory release parole violator, non-bifurcated sentence, offender, parole-eligible, parole violator, prisoners, projected mandatory release date, reclassification, records staff, restrictive housing, reviewing authority, security threat group, special action release, special action release coordinator, staff, statutory good time and Wisconsin substance abuse program.
6. Promulgates a rule provision requiring the department to set prison population limits under s.301.055 Stats.
7. In keeping with current correctional practice and to more accurately describe the differences between the department’s intake and inmate classification process, renames “Assessment and Evaluation” or “A&E” as “Initial Classification” or “IC”.
8. In keeping with current correctional practice and to more accurately describe department’s recurring inmate classification process, renames “Program Review” or “PR” as “Reclassification” or “RC”.
Creates the following factors in assigning a custody classification in recognition of current inmate classification research results: gender, age, security threat group incidents or affiliation, and predatory behavior.
9. Clarifies that a designee of the director may approve minimum or community custody for an inmate serving a life sentence.
10. Clarifies and distinguishes program need assignment and enrollment processes.
11. Updates and clarifies the current initial and reclassification procedures.
12. Clarifies the procedures for requesting and authorizing a reclassification hearing prior to a previously scheduled recall date.
13. Permits alteration of a classification decision due to changes in institution program or placement resources that occur subsequent to the original decision.
14. Creates language in various sections to reflect bifurcated sentencing guidelines implemented after December 31, 1999, also referred to as “truth in sentencing”.
15. Provides a process for a department registrar to contact the sentencing court and the inmate if there is uncertainty in the sentence imposed by the court.
16. Updates the chapter to clarify the process for waiver of good time, mandatory release or release to extended supervision.
17. Repeals certain earned releases formerly under 302.113 (9h), Stats. of 2009, and elements of positve adjustment time repealed by 2011 Wisconsin Act 38. This is due to the Wisconsin Supreme Court decision in State ex rel. Aman Singh v. Paul Kemper, 2016 WI 67, and the Wisconsin Court of 18. Appeals decision in State ex rel. Aman Singh v. Paul Kemper, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820. 19. Updates the chapter to reflect statute change of the Wisconsin earned release program to the Wisconsin substance abuse program resulting from 2011 Wisconsin Act 38. 20. Updates the chapter to reflect statute changes to the challenge incarceration program resulting from 2011 Wisconsin Act 38. 21. Updates the chapter to reflect statute changes to risk reduction sentences resulting from 2011 Wisconsin Act 38.
22. Creates a department process for extraordinary health condition and geriatric petition release from prison under s.301.113 (9g).
F. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: There are no federal statutes or regulations that regulate the activities addressed by the proposed rule.
G. Comparison of similar rules in adjacent states:
Illinois rules concerning classification and transfers apply to both adult and juvenile inmates of the Illinois Department of Corrections. (20 ILAC 503.10) Wisconsin has a separate set of rules which addresses incarcerated juveniles.
Illinois rules require evaluation of inmates for placement and classification purposes at a reception and classification center for initial assignment to a correctional facility or program. The process includes an evaluation of the following factors: criminal, educational and employment history, health care condition, and any other information deemed relevant to placement. The Director determines an inmate’s initial placement based on the classification center’s recommendation. The rules require that an inmate’s classification or program be reviewed at regular intervals. (20 ILADC 503.20) Similarly, Wisconsin rules require that an inmate’s classification and placement be initially determined at intake. Wisconsin rules consider similar factors in determining classification and placement. Unlike Illinois, Wisconsin rules require that the classification procedure be determined during a hearing and then reconsidered during incremental re-hearings.
Illinois rules permit that an inmate may be administratively transferred to any of the department’s facilities or programs or as otherwise permitted by law. (20 ILADC 503.120) Illinois rules permit that an inmate may be transferred for discipline as the result of an adjustment committee decision. (20 ILADC 503.140) Illinois rules permit that an inmate may be transferred for mental health purposes by emergency or after a hearing and review process. (20 ILADC 503.150) Wisconsin rules require that permanent changes in custody or institution placement of an inmate requires a reclassification hearing. Wisconsin rules permit a temporary placement following a rule violation or for medical emergencies.
Illinois rules concerning sentence computations apply to both incarcerated adults and juveniles. The rules do not apply to persons committed as delinquents, as a result of a finding of contempt, or to those serving sentences of periodic imprisonment. (20 ILADC 107.100) Wisconsin has a separate set of rules which addresses incarcerated juveniles. Wisconsin rules do not distinguish between those committed due to contempt or period imprisonment.
Wisconsin rules require the department to calculate an inmate’s sentence and inform the inmate in writing of parole eligibility, projected release, and projected discharge dates. Illinois does not have a similar rule.
Illinois rules establish a process to review inmates serving indeterminate sentences. The rules require those inmates to appear before a prison review board prior to parole eligibility after serving a minimum sentence or 20 years, whichever is less, less applicable statutory good time, compensatory good time, and day for day credit. If an offender must serve the maximum indeterminate sentence, he or she shall be released after serving the maximum of the sentence, less statutory good time, compensatory good time, and day for day credit. (20 ILADC 107.110)
Illinois rules require that an inmate serving a determinate sentence shall be released after serving his determinate sentence, less any applicable credit awarded. (20 ILADC 107.110)