DOC 303.79 History
History: CR 11-022: cr.
Register September 2014 No. 705, eff. 1-1-15.
DOC 303.80
DOC 303.80 Contested major disposition. DOC 303.80(1)(1)
Notice. When an inmate is alleged to have committed a major violation and the security director has reviewed the conduct report pursuant to
s. DOC 303.68, staff shall give the inmate a copy of the conduct report within 2 working days after review. At any time prior to the hearing, the security director may amend the conduct report to either correct or add information or evidence to be considered at the hearing. The institution shall inform the inmate of all of the following:
DOC 303.80(1)(b)
(b) The potential dispositions that may be imposed or other results that may occur, including removal from programming or work release.
DOC 303.80(1)(c)
(c) The right the inmate has to a full due process hearing or to waive this right in writing.
DOC 303.80(1)(d)
(d) If the inmate waives the right to a full due process hearing, the inmate shall be given a hearing under
s. DOC 303.81.
DOC 303.80(1)(e)
(e) If a full due process hearing is chosen, the inmate shall be informed of all of the following:
DOC 303.80(1)(e)1.
1. The inmate may present oral, documentary and physical evidence, and testimony from witnesses in accordance with this section and
s. DOC 303.84. The hearing officer shall reject any written statement that fails to conform to
s. DOC 303.84 (3) and return the statement to the inmate.
DOC 303.80(1)(e)2.
2. The accused inmate may present an oral statement. No written statement by the accused inmate may be submitted, except under extraordinary circumstances as authorized by the security director. A written statement under this paragraph shall only be accepted if the statement is a legibly printed statement limited to 500 words on no more than two sheets of paper, a transcript of an oral statement, or a recorded statement.
DOC 303.80(1)(e)4.
4. The hearing officer may permit direct questions or require the inmate or the inmate's representative to submit questions to the hearing officer to be asked of the witness.
DOC 303.80(1)(e)5.
5. The hearing officer may prohibit repetitive, disrespectful or irrelevant questions.
DOC 303.80(1)(e)6.
6. If the inmate refuses to attend a hearing or is disruptive and removed, the inmate shall forfeit the right to present a defense or to call witnesses. The hearing officer may conduct the hearing without the inmate being present. The hearing officer shall administratively review the conduct report and render a decision based upon the available evidence.
DOC 303.80(2)
(2) Waiver. An inmate may waive the right to a due process hearing in writing at any time. If the inmate waives a due process hearing, the institution shall dispose of the conduct report under
s. DOC 303.81. A waiver does not constitute an admission of the alleged violation. A waiver may not be retracted without the security director's approval.
DOC 303.80(3)(a)(a) The institution may not hold the hearing until at least 2 working days after the inmate receives notice of disciplinary hearing rights and a copy of either the approved conduct report or amended conduct report, whichever is later. The disciplinary hearing shall be held within 21 days of the inmate receiving notice of disciplinary hearing rights unless the security director authorizes an extension of time. The security director may authorize a hearing beyond the 21 day time limit, either before or after the 21
st day.
DOC 303.80(3)(b)
(b) The inmate may also request more time to prepare, and the security director may grant the request. An inmate may waive in writing the time limits provided in this section.
DOC 303.80(3)(c)
(c) The institution shall toll time for observation and control placements and for any full or partial day when the inmate is out of the institution on a temporary release order.
DOC 303.80(4)
(4) Place. The due process hearing may be held in person, by telephone, video conferencing or other virtual communication means at the discretion of the hearing officer.
DOC 303.80(5)
(5) Hearing. The hearing officer shall conduct the due process hearing by doing all of the following:
DOC 303.80(5)(b)
(b) Permit the accused inmate to make an oral statement. An inmate may submit a written statement in lieu of an oral statement only under extraordinary circumstances as authorized by the security director. The written statement under this paragraph shall only be accepted if the statement is a legibly printed statement limited to 500 words on no more than two sheets of paper, a transcript of an oral statement, or a recorded statement.
DOC 303.80(5)(c)
(c) Question approved witnesses. The hearing officer may accept a written witness statement only if it conforms to the requirements under
s. DOC 303.84 (3).
DOC 303.80(5)(e)
(e) Permit questions or require the inmate or the inmate's staff representative to submit written questions to the
hearing officer to be asked of the witness.
DOC 303.80(5)(f)
(f) Prohibit repetitive, disrespectful or irrelevant questions.
DOC 303.80(5)(g)
(g) Mark all documentary and physical evidence received into evidence from the accused as “Submitted By The Inmate."
DOC 303.80(5)(h)
(h) If an inmate refuses to attend the hearing or disrupts the hearing and is removed, the inmate forfeits the right to present a defense or to call witnesses. The hearing officer shall administratively review the conduct report and render a decision based upon the available evidence.
DOC 303.80(6)
(6) Decision. After the hearing the hearing officer shall do all of the following:
DOC 303.80(6)(c)
(c) Establish guilt based on a finding that it was more likely than not that the inmate committed the act.
DOC 303.80(6)(d)
(d) Find the inmate guilty or not guilty on each charge and impose a disposition if found guilty. A committee of three may make a decision if at least two of the three members agree. If the committee is comprised of two members, the decision must be unanimous.
DOC 303.80(6)(e)
(e) Refer the matter to the warden for a decision if the
disciplinary committee members do not agree on a finding of guilt or a disposition.
DOC 303.80(6)(f)
(f) Consider any of the inmate's defenses or other mitigating factors.
DOC 303.80(6)(h)
(h) Provide the accused inmate and the inmate's staff representative, if any, a written copy of the decision with reasons for the decision.
DOC 303.80 History
History: CR 11-022: cr.
Register September 2014 No. 705, eff. 1-1-15; correction in numbering in (2) to (6) made under s.
13.92 (4) (b) 1., Stats., September 2014 No. 705.
DOC 303.81
DOC 303.81 Contested major disposition: waiver of due process hearing. DOC 303.81(1)
(1)
Notice. If an inmate has waived a due process hearing under
s. DOC 303.80 and the violation is not disposed of in accordance with
s. DOC 303.78, the institution shall dispose of it in accordance with this section.
DOC 303.81(2)
(2) Time limits. The institution may not hold the hearing until at least 2 working days after the inmate receives notice of disciplinary hearing rights and a copy of either the approved conduct report or amended conduct report, whichever is later. Unless otherwise authorized by the security director, the institution may not hold the hearing more than 21 calendar days after the inmate receives the hearing rights notice and conduct report. The security director may authorize a hearing beyond the 21 day time limit, either before or after the 21
st day. The 21 day time limit is not jurisdictional. The inmate may also request more time to prepare, and the security director may grant the request. An inmate may waive in writing the time limits provided in this section. The institution shall toll time for observation and control placements and for any full or partial day when the inmate is out of the institution on a temporary release order.
DOC 303.81(3)
(3) Hearing. The inmate has no right to a staff representative, to confront witnesses or to have witnesses testify on the inmate's behalf. The hearing officer shall conduct the hearing by doing all of the following:
DOC 303.81(3)(b)
(b) Provide the inmate with an opportunity to respond to the report and make a verbal statement about the alleged violation. No written statement by the accused inmate may be submitted.
DOC 303.81(3)(d)
(d) Mark all documentary and physical evidence received into evidence from the accused as “Submitted By The Inmate."
DOC 303.81(4)
(4) Attendance. If an inmate refuses to attend the hearing or disrupts the hearing and is removed, the inmate forfeits the right to provide a statement or evidence. The hearing officer shall administratively review the conduct report and render a decision based upon the available evidence.
DOC 303.81(5)
(5) Place. The due process hearing may be held in person, by telephone, video conferencing or other virtual communication means at the discretion of the hearing officer.
DOC 303.81(6)
(6) Decision. After the hearing the hearing officer shall do all of the following:
DOC 303.81(6)(c)
(c) Establish guilt based on a finding that it was more likely than not that the inmate committed the act.
DOC 303.81(6)(d)
(d) Find the inmate guilty or not guilty on each charge and impose a disposition if found guilty.
DOC 303.81(6)(e)
(e) Consider any of the inmate's defenses or other mitigating factors.
DOC 303.81(6)(g)
(g) Provide the accused inmate a written copy of the decision with reasons for the decision.
DOC 303.81 History
History: CR 11-022: cr.
Register September 2014 No. 705, eff. 1-1-15; correction in (4) (title) made under s.
13.92 (4) (b) 1., Stats.,
Register September 2014 No. 705.
DOC 303.82
DOC 303.82 Appeal of contested major or minor disposition or contested major waiver. DOC 303.82(1)
(1) The inmate may appeal a disciplinary decision under
s. DOC 303.77,
303.80, or
303.81, including procedural errors, to the warden within 10 days after the inmate receives a copy of the decision.
DOC 303.82(2)
(2) The warden shall review all records and forms pertaining to the appeal and make the decision within 60 days following receipt of the request for appeal.
DOC 303.82(3)
(3) The warden's decision shall be one or more of the following:
DOC 303.82(3)(d)
(d) Return the case for further consideration, to complete or correct the record, to correct any procedural error, or for rehearing.
DOC 303.82(4)
(4) The warden's decision is final regarding the sufficiency of the evidence. An inmate may appeal claims of procedural errors as provided under s.
DOC 310.06 (2).
DOC 303.82 History
History: CR 11-022: cr.
Register September 2014 No. 705, eff. 1-1-15; correction in numbering in (4) made under s.
13.92 (4) (b) 1., Stats.,
Register September 2014 No. 705;
CR 16-054: am. (4), Register March 2018 No. 747 eff. 4-1-18.
DOC 303.83
DOC 303.83 Due process hearing: staff representative. DOC 303.83(1)(1) At each institution, the warden shall designate staff representatives for inmates in disciplinary hearings at the institution.
DOC 303.83(2)
(2) If an inmate or staff representative provides information and evidence to the warden that there is a conflict of interest in the case that would impair a staff representative's ability to perform his or her duties, the warden shall evaluate the information and evidence to determine if a different representative should be assigned.
DOC 303.83(3)
(3) The role of the staff representative is to help the accused inmate understand the charges against the inmate and to provide direction and guidance regarding the disciplinary process. The staff representative may use discretion in the performance of this role, including gathering relevant evidence and testimony and preparing the inmate's own statement. The staff representative may speak on behalf of the accused inmate at a disciplinary hearing or may help the inmate prepare to speak.
DOC 303.83 History
History: CR 11-022: cr.
Register September 2014 No. 705, eff. 1-1-15; correction in (title) made under s.
13.92 (4) (b) 2., Stats.,
Register September 2014 No. 705.
DOC 303.84
DOC 303.84 Due process hearing: witnesses. DOC 303.84(1)(1) The accused inmate may make a request to the security director for no more than two identified witnesses in addition to the reporting employee and shall explain the relevance of the witness testimony. The inmate shall make this request within two days of the service of notice of major disciplinary hearing rights. The security director may waive the two day time limit for good cause.
DOC 303.84(2)
(2) After all witness requests have been received, the security director shall review them to determine whether the witnesses possess relevant information and shall be called.
DOC 303.84(3)
(3) Written witness statements shall only be accepted if approved by the hearing officer. The hearing officer may consider a legibly printed written statement limited to 500 words on no more than two sheets of paper, a transcript of an oral statement, or a recorded statement.
DOC 303.84(4)
(4) Witnesses requested by the accused who are staff or inmates shall attend the disciplinary hearing unless one of the following exists:
DOC 303.84(4)(b)
(b) The witness is unavailable. Unavailability means death, transfer, release, hospitalization, or escape in the case of an inmate; unavailability means death, illness, vacation, no longer being employed at that location, or being on a different shift in the case of an employee.
DOC 303.84(4)(c)
(c) The testimony is irrelevant to the question of guilt or innocence.
DOC 303.84(4)(d)
(d) The testimony is merely cumulative of other evidence and would unduly prolong the hearing.
DOC 303.84(5)
(5) If the security director finds that testifying would pose a risk of harm to the witness, the hearing officer may consider a confidential statement signed under oath from that witness without revealing the witness's identity or a signed statement from an employee getting the statement from that witness. The hearing officer shall reveal the contents of the statement to the accused inmate, except the hearing officer may edit or summarize the statement to avoid revealing the identity of the witness. The hearing officer may question a confidential witness if the witness is available.
DOC 303.84(6)
(6) The hearing officer may consider written statements that can be corroborated in one of the following ways:
DOC 303.84(6)(a)
(a) By other evidence which substantially corroborates the facts alleged in the statement, including an eyewitness account by an employee or circumstantial evidence.
DOC 303.84(6)(b)
(b) By evidence of a very similar violation by the same inmate.
DOC 303.84(6)(c)
(c) Two confidential statements by different persons may be used to corroborate each other.
DOC 303.84(7)
(7) If it is not possible to get a signed statement in accordance with
subs. (3) and
(5), the hearing officer may consider other evidence of what the witness would say if present.
DOC 303.84(8)
(8) After determining which witnesses shall be called for the accused inmate, staff shall notify the inmate of the decision in writing.
