Section 938.48(16): (a) Based on research into effective correctional programs and practices, establish standards for services for juveniles under the supervision of the department under s. 938.183, 938.34 or 938.345. (b) Promulgate rules governing services and programming for juveniles in a secured residential care center for center and youth…. 3. Explanation of agency authority: The department has responsibilities imposed by statute to establish and enforce standards for services for youth under the supervision of the department. Additionally, the department has responsibilities imposed by statute to provide for rules governing the conduct of youth in type 1 secured correctional facilities operated by the department, and for the discipline of youth who violate those conduct rules.
4. Related statute or rule: Wisconsin Statute Chapter 938 and Wisconsin Administrative Code Chapter 301. 5. Plain language analysis: This rulemaking order updated DOC 373 to reflect changes in the operations and practices of the department as they affect youth conduct in Type 1 secured correctional facilities. This rulemaking order also updates the language in DOC 373 to reflect current best practices for managing youth behavior and system upgrades. In addition, the rulemaking order updates DOC 373 to adhere to the court order issued in J.J. et al vs. Litscher et al.
The rulemaking order updates the definitions of contraband, disturbance, facility, mechanical restraint and staff to align with the definitions in CR 24-003. The rulemaking order repeals the definitions of close confinement, conduct report, major conduct rule violation, major penalty, minor conduct rule violation, minor penalty and modified confinement and creates definitions for group disturbance, security threat group and treatment-based response. Additionally, this rulemaking order removes the provisions relating to major and minor penalties and conduct rule violations and prehearing security. The rulemaking order also removes the conduct rule relating to order for talking when prohibited, the conduct rules relating to movement for loitering and the conduct rule relating to safety and health for self-harm and disfigurement. Other conduct rules for violating conditions of leave and failing to perform assignments are repealed in this rulemaking order. This rulemaking order creates another conduct rule relating to bodily security for bullying, creates a conduct rule relating to order for violating boundaries and creates a conduct rule relating to contraband for misuse of state or federal property.
Lastly, this rulemaking order updates the conduct rules relating to facility security for participating in a disturbance and for group resistance, updates the conduct rules relating to order from disobeying orders to refusal to comply and updates the conduct rule relating to order for lying and unauthorized forms of communication. This rulemaking order also updates several provisions relating to the disposition of conduct rule violations by removing major conduct rule violations and dispositions for major conduct rule violations, conduct reports and disciplinary hearings.
6. Summary of, and comparison with, existing or proposed federal regulations that are intended to address the activities to be regulated by the proposed rule: There are no existing or proposed federal regulations that address the activities to be regulated by the proposed rules. However, federal standards set by the Juvenile Justice and Delinquency Prevention Act (JJDPA) includes the following provisions which may affect best practices for managing youth behavior in a secured correction facility:
34 U.S.C. § 11133(a)(7)(B)(ii)
(B) contain—(ii) a plan for providing needed gender-specific services for the prevention and treatment of juvenile delinquency;
34 U.S.C. § 11133(a)(9)(D)
(D) programs that provide treatment to juvenile offenders who are the victims of child abuse or neglect, and to their families, in order to reduce the likelihood that such juvenile offenders will commit subsequent violations of law:
34 U.S.C. § 11133(a)(9)(L)
(L) programs for positive youth development that assist delinquent and other at-risk youth in obtaining-
(i) a sense of safety and structure;
(ii) a sense of belonging and membership;
(iii) a sense of self-worth and social contribution;
(iv) a sense of independence and control over one’s life; and
(v) a sense of closeness in interpersonal relationships;
Prison Rape Elimination Act (PREA)
28 C.F.R § 115.315 Limits to cross-gender viewing and searches 28 C.F.R § 115.342 Placement of residents in housing, bed program, education, and work assignments 7. Comparison with similar rules in adjacent states:
The adjacent states have similar rules to the proposed Wisconsin rule. All adjacent states have requirements that juvenile correctional facilities must have written policies regarding unacceptable youth behavior and the potential consequences if a youth violates the rules of conduct. Additionally, most adjacent states have rules that provide for or require review of any alleged misconduct and allow for youth to appeal any allegations of misconduct.
a. Illinois: The Illinois Department of Juvenile Justice was created to provide treatment and services through a comprehensive continuum of individualized educational, vocational, social, emotional, and basic life skills to enable youth to avoid delinquent futures and become productive, fulfilled citizens. 730 ILCS 5/3-2.5-5. Illinois Administrative Code specifies the conduct rules for youth expounds on these responsibilities and specifies the disciplinary procedures for youth in the Department’s care. Conduct rules specify a number of offenses and the maximum penalty for each offense. The conduct rules specify a variety of offenses including possessing contraband, sexual misconduct, assault, damage or misuse of property, dangerous communications and failure to report for a work, educational, or program assignment or for transport. Ill. Admin. Code tit. § 2504.20.
Illinois Administrative Code also codifies the administration of discipline for the Department of Juvenile Justice. Employees have the duty to observe the conduct of youth and must complete a disciplinary report if they observe a youth committing an offense, discovers evidence of its commission, or receives information from a reliable witness of such conduct. Ill. Admin. Code tit. § 2504.30. Disciplinary reports shall be reviewed by a reviewing officer to determine if the reported facts justify a disciplinary hearing, if the offense was minor or major in nature, or if the report shall be expunged from the youth’s record. Ill. Admin. Code § 2504.50(d). No youth shall be found guilty of any violation of these rules without a hearing before the Adjustment Committee or Program Unit. Ill. Admin. Code tit. § 2504.20(a).
b. Iowa: Iowa administrative code specifies the standards and requirements for juvenile detention facilities. Per Iowa administrative code, a facility shall provide to the child written policies specifying inappropriate behaviors, reasonable consequences for misconduct, and due process procedures available to the child. 441 IAC 105.16(6). Upon request, the above information shall be provided to the child’s parent or guardian and referring worker. 441 IAC 105.16(6).
c. Michigan: Per Michigan administrative code, a juvenile court operated facility shall have and follow written discipline policy and procedures that specify acts which are prohibited within the facility and penalties that may be imposed for minor misbehavior and major violations and a copy shall be given and explained to each resident and staff members. R. 400.10169(2).
d. Minnesota: Minnesota administrative rule codifies facility operational service policies and practices for programs from children. Each facility must communicate verbally and in writing to a resident who is capable of understanding the facility’s rules and the details of the due process system used in the facility. Minn. R. 2960.0080(4). The rules must address which behaviors are considered acceptable and unacceptable and the reasons why, the consequences that will be applied in recognizing and rewarding acceptable behavior and modifying unacceptable behavior, the due process system that governs the facility’s use of disciplinary consequences and the relationship of the resident’s individualized education program discipline recommendations, if any, to the facility’s discipline plan. Minn. R. 2960.0080(4).
Additionally, a facility must have a resident discipline plan that explains the consequences or administrative sanctions for specific behaviors or omissions, the administrative process for handling major and minor violations, the right of notice of major charges made against the resident, the right to internal review and the appeal process. Minn. R. 2960.0270(6)(a). These rules of conduct must be posted and explained to a resident in a way and in a language that the resident will understand. Minn. R. 2960.0270(6)(c).
8. Summary of the 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. 9. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis: Not applicable.
10. Effect on small businesses: Not applicable.
11. A copy of any comments and opinion prepared by the Board of Veterans Affairs. Not applicable.
12. Agency contact person: Caitlin Washburn, Administrative Rules Coordinator, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI, 53707-7925; by phone: (608) 240-5020; or by email: DOCAdministrativeRulesCommittee@wisconsin.gov. 13. Place where comments are to be submitted and deadline for submission: Written comments on the proposed rule will be accepted and receive consideration if they are received by June 4th, 2024. Written comments should be addressed to: Administrative Rules Committee, c/o Caitlin Washburn, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email: DOCAdministrativeRulesCommittee@wisconsin.gov.
TEXT OF RULE
SECTION 1. DOC 373.01 (1), (2), (4)(intro.), (e) and (f) are amended to read:
DOC 373.01 (1) To provide for the degree of confinement and programming for each youth required for the protection of the public, staff and youth.
(2) To operate orderly institutions facilities.
(4)(intro.) To provide a uniform disciplinary process for all institutions facilities which enhances the constructive, individualized programming for youth by doing all of the following:
(e) Ensuring that each youth is in the appropriate setting necessary to achieve the objectives of ch. 938, Stats., and that discipline which imposes significant restriction on a youth’s liberty be imposed only by staff designated by the superintendent to ensure fair, appropriate and consistent decision-making. (f) Provide for routine review of the restrictions placed on a youth to assure that the restrictions are appropriately based on the seriousness of violations by the youth; the youth’s subsequent behavior; and the risk posed by the youth to self, others or institution facility security.
SECTION 2. DOC 373.03 (1), (3) and (4) are repealed.
SECTION 3. DOC 373.03 (6), (9) and (10) are repealed and recreated to read:
DOC 373.03 (6) “Contraband” means any item or items introduced or found in the facility whether illegal or legal that are expressly prohibited by the department or facility policy.
(9) “Disturbance” means any of the following has occurred:
(a) A group disturbance.
(b) An incident.
(c) A youth has taken a hostage.
(10) “Facility” means a type 1 juvenile correctional facility, as defined in s. 938.02 (19), Stats. SECTION 4. DOC 373.03 (10m) is created to read:
DOC 373.03 (10m) “Group disturbance” means the disruption or interference of normal facility operations resulting from 3 or more youth participating in actions, threats, demands, or suggestions to advocate disruption or disturbance almost akin to a riot.
SECTION 5. DOC 373.03 (13), (17), (18), (19), (20), (21) and (22) are repealed.
SECTION 6. DOC 373.03 (24m) is created to read:
DOC 373.03 (24m) “Security threat group” means a group of individuals who threaten, intimidate, coerce, or harass others or who engage in any activity that violates or encourages the violation of statutes, administrative rules, or department policy.
SECTION 7. DOC 373.03 (25) and (26) are amended to read:
DOC 373.03 (25) “Staff” means a state employee of or a person under contract with the department or the institution facility where a youth is housed.
(26) “Superintendent” means the superintendent of an institution a facility or designee.
SECTION 8. DOC 373.03 (27m) is created to read:
