WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULE MAKING ORDER
INTRODUCTORY CLAUSE
The statement of scope for this rule was approved by the Governor on December 10, 2021, published as Scope Statement No. SS 115-21 in Register No. 792A3 on December 20, 2021, and approved by Secretary Kevin Carr on January 10, 2022. The Wisconsin Department of Corrections proposes an order to repeal DOC 373.03(1), (3), (4), (13), (17), (18), (19), (20), (21), and (22), 373.11(1), (2), (3), (4), (5) and (6), 373.13, 373.52, 373.57, 373.62, 373.63, 373.67(4), 373.68(3)(b), (10)(a)1., and (10)(d), 373.69, 373.70, 373.71, 373.72, 373.73, 373.74, 373.75, 373.76, 373.77, 373.78, 373.80, 373.81(3)(d) and (5) and 373.82, to renumber and amend DOC 373.11(7) and (8), to amend DOC 373.01(1), (2), and (4)(intro.), (e) and (f), 373.03(25), (26), and (29), 373.04(intro.), (5), (6), 373.05, Subchapter III(title), 373.22(1), 373.24(1), 373.26(1) and (3), 373.27(2), 373.33, 373.38, 373.45(1)(b), 373.46(2), 373.47(1) and (3), 373.49(2) and (4), 373.58(1) and (2), 373.59(1) and (2), 373.60, 373.65, 373.66(1), 373.67(1), 373.68(1), (4), (10)(intro.), and (10)(c), 373.79(1) and (3), 373.81(1) and (4) and 373.83(1), to repeal and recreate DOC 373.03(6), (9) and (10), 373.29, 373.32, 373.34, 373.35 and 373.66(2) and to create DOC 373.03(10m), (24m) and (27m), 373.205, 373.24(3), 373.505 and 373.68(14).
RULE SUMMARY
1. Statutes interpreted:
ss. 301.02, 301.025, 301.03, 301.032 and 938.48(16), Stats. 2. Statutory authority to promulgate the rule: Section 227.11 (2) (a) – (e): Rule-making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or non-statutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
(b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.
(c) Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the 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.
(d) An agency may promulgate rules implementing or interpreting a statute that it will enforce or administer after publication of the statute but prior to the statute's effective date. A rule promulgated under this paragraph may not take effect prior to the effective date of the statute that it implements or interprets.
(e) An agency may not inform a member of the public in writing that a rule is or will be in effect unless the rule has been filed under s. 227.20 or unless the member of the public requests that information. Section 301.02: The department shall maintain and govern the state correctional institutions. Section 301.025: The division of juvenile corrections shall exercise the powers and perform the duties of the department that relate to juvenile correctional services and institutions, juvenile offender review, community supervision under s. 938.533, and the serious juvenile offender program under s. 938.538. Section 301.03(2): Supervise the custody and discipline of all prisoners and maintenance of state correctional institutions and the prison industries under s. 303.01. 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
