(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating policies as rules which the agency shall follow until they are amended or repealed. A rule promulgated in accordance with this paragraph is valid only to the extent that the agency has discretion to base an individual decision on the policy expressed in the rule.
(1) General authority. The department shall investigate and supervise all of the state prisons under s. 302.01, all juvenile correctional facilities, all secured residential care centers for children and youth, and all juvenile detention facilities and familiarize itself with all of the circumstances affecting their management and usefulness. (2) Prisons. The department shall visit all places in which persons convicted of or suspected crime are confined, and ascertain their arrangement for the separation of the hardened criminals from juvenile offenders and person suspected of crime or detained as witnesses; collect statistics concerning the inmates, their treatment, employment and reformation; and collect information of other facts and considerations affecting the increase or decrease of crime.
(3) Inspections. The department shall inquire into the methods of treatment, instruction, government and management of inmates of the institutions mentioned in this section; the conduct of their trustees, managers, directors, superintendents and other officers and employees; the condition of the buildings, grounds and all other property pertaining to the institutions, and all other matters pertaining to their usefulness and management; and recommend to the officers in charge such changes and additional provisions as it deems proper.
(4) Frequency of inspections. The department shall inspect and investigate each institution at least annually and, when directed by the governor, it shall conduct a special investigation into an institution's management, or anything connected with its management, and report to the governor the testimony taken, the facts found and conclusions drawn.
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(6) Opportunity to inspect. All trustees, managers, directors, superintendents and other officers or employees of the institutions shall at all times afford to every member of the department and its agents, unrestrained facility for inspection of and free access to all parts of the buildings and grounds and to all books and papers of the institutions; and shall give, either verbally or in writing, such information as the department requires. Any person who violated this subsection shall forfeit not less than $10 nor more than $100.
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(8) Statistics to be furnished. Wherever the department is required to collect statistics, the person or agency shall furnish the required statistics on request.
(1) The department shall fix reasonable standards and regulations for the design, construction, repair, and maintenance of all houses of correction, reforestation camps maintained under s. 303.07, jails, as defined in s. 302.30, extensions of jails under s. 59.54 (14) (g), rehabilitation facilities under s. 59.53 (8), lockup facilities, as defined in s. 302.30, work camps under s. 303.10, Huber facilities under s. 303.09, and, after consulting with the department of children and families, all juvenile detention facilities, with respect to their adequacy and fitness for the needs which they are to serve. (2) The selection and purchase of the site, and the plans, specifications and erection of buildings, for the institutions is subject to the review and approval of the department. Department review shall include review of the proposed program to be carried out by the institution.
(3) Before any such building is occupied, and at least annually thereafter, the department shall inspect each institution with respect to safety, sanitation, adequacy and fitness, report to the authorities conducting the institution any deficiency found and order the necessary work to correct it or a new building. If within 6 months thereafter the work is not commenced, or not completed within a reasonable period thereafter, to the satisfaction of the department, the department shall suspend the allowance of state aid for, and prohibit the use of, the building until the order is complied with.
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(5) The department's standards and regulations under sub. (1) for juvenile detention facilities apply to private juvenile detention facilities used under s. 938.222. 2017 Act 185 grants the department the following additional rulemaking authority. Section 53. 938.22 (2) (a) of the statutes is amended to read:
(a) Counties shall submit plans for a juvenile detention facility, secured residential care center for children and youth, or juvenile portion of the county jail to the department of corrections and submit plans for a shelter care facility to the department of children and families. A private entity that proposes to establish a juvenile detention facility or an Indian tribe or a child welfare agency that proposes to establish a secured residential care center for children and youth shall submit plans for the facility to the department of corrections. The applicable department shall review the submitted plans. A county, Indian tribe, private entity, or child welfare agency may not implement a plan unless the applicable department has approved the plan. The department of corrections shall promulgate rules establishing minimum requirements for the approval and operation of juvenile detention facilities, secured residential care centers for children and youth, and the juvenile portion of county jails. The plans and rules shall be designed to protect the health, safety, and welfare of the juveniles placed in those facilities.
Section 54. 938.22 (2) (d) of the statutes is created to read:
1. Except as provided in subd. 2., a juvenile detention facility is authorized to accept juveniles for placement for more than 30 consecutive days under s. 938.34 (3) (f) 1. if all of the following apply: a. The juvenile detention facility is operated by a county, the county board of supervisors of which has adopted a resolution under section 938.34 (3) (f) 3., prior to January 1, 2018, authorizing placement of juveniles at the juvenile detention facility under section 938.34 (3) (f) for more than 30 consecutive days.
b. The county that operates the juvenile detention facility is not awarded a grant under 2017 Wisconsin Act .... (this act), section 110 (4).
2. After January 1, 2021, the number of juveniles that may be housed at a juvenile detention facility under subd. 1 is limited to the number that are housed at the juvenile detention facility on January 1, 2021, and the juvenile detention facility may not be altered or added to or repaired in excess of 50 percent of its assessed value. If a juvenile detention facility violates this subdivision, it is no longer authorized to accept juveniles for placement for more than 30 consecutive days.
Section 90. 938.48 (16) (b) of the statutes is created to read:
(b) Promulgate rules governing services and programming for juveniles in a secured residential care center for children and youth. The department shall include uniform data reporting standards for counties or Indian tribes that operate or contract with a child welfare agency for a secured residential care center for children and youth in rules promulgated under this paragraph. The department shall base the rules it promulgates under this paragraph on the recommendations provided by the juvenile corrections study committee under 2017 Wisconsin Act .... (this act), section 110 (6) (c ) 1.
4. ESTIMATE OF AMOUNT OF TIME THAT STATE EMPLOYEES WILL SPEND DEVELOPING THE RULE AND OTHER RESOURCES NECESSARY TO DEVELOP THE RULE.
DOC staff will devote approximately 3,000 hours promulgating the rule. This includes time required for investigation and analysis, rule drafting, and preparing related documents. The DOC anticipates that it will use existing staff to develop this rule.
5. LIST WITH DESCRIPTION OF ALL ENTITIES THAT MAY BE AFFECTED BY THE PROPOSED RULE.
The rule affects juveniles, children, county entities, child welfare agencies, including county juvenile facilities and secure residential care centers, and staff.
6. SUMMARY AND PRELIMINARY COMPARISON WITH ANY EXISTING OR PROPOSED FEDERAL REGULATION THAT IS INTENDED TO ADDRESS THE ACTIVITIES TO BE REGULATED BY THE PROPOSED RULE.
There are various federal laws that might relate to the provisions created in the proposed chapter that affect the management and operation of the secured residential care centers anticipated to be created in this chapter.
First, Wisconsin opted to come into compliance with the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), 34 U.S.C. § 11101, et seq., and the implementing regulations (28 CFR Part 31), thereby making certain funds under the Act available to Wisconsin counties. In general, the JJDPA and its regulations prohibit sight and sound contact between juveniles and adults. A facility may achieve sight and sound separation through architectural or procedural means. Sight or sound contact is permitted if it is both brief and inadvertent or accidental. Contacts must be reported as violations of the JJDPA. The JJDPA permits the transfer or placement of adjudicated delinquents in adult facilities once the juvenile has attained the age of full criminal responsibility under State law (17 years of age for Wisconsin). (34 U.S.C. § 11133 (a) (11), (12), and (13))
The JJPDA also regulates co-located facilities, that is, adult and juvenile facilities which are in the same building complex. The JJDPA requires sight and sound separation of juveniles and adults through architectural or procedural means. (34 U.S.C. § 11133 (a) (11 ), (12), and (13))
The JJDPA also limits the amount of time that a juvenile may be held in an adult jail or
lockup. (34 U.S.C. § 11133 (a) (11), (12), and (13))
The DOC anticipates that this proposed chapter will be consistent and in compliance with the standards imposed by the JJDPA.
Second, the Prison Rape Elimination Act (PREA) imposes certain standards on juvenile facilities pursuant to 28 CFR Part 115, Subpart D – Standards for Juvenile Facilities. In general, PREA imposes certain supervision and monitoring standards. The standards also impose staffing requirements, such as minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours. The DOC anticipates that this proposed chapter will be consistent and in compliance with the standards imposed by PREA.
7. ANTICIPATED ECONOMIC IMPACT OF IMPLEMENTING THE RULE. NOTE IF THE RULE IS LIKELY TO HAVE AN ECONOMIC IMPACT ON SMALL BUSINESSES.
The DOC estimates there will be no fiscal impact as a result of this rule applies to facilities that do not currently exist. Future operators of facilities governed by this rule will incur costs associated with operating a facility but those costs are presently indeterminate. Individual pieces of legislation may have had some fiscal impact, but these rule changes alone have no fiscal impact.
AGENCY CONTACT INFORMATION:
Contact Person: Katharine Ariss, Legal Counsel
Wisconsin Department of Corrections
Office of Legal Counsel
Mailing Address: Department of Corrections
c/o Glen A. Mercier II
