Chapter DOC 373

DOC 373.76(1) (1) A youth may request that witnesses be called. The youth shall make the request to the youth’s advocate who shall deliver it to the hearing officer. Except for good cause, a youth may present no more than 2 witnesses. If a youth has chosen not to have an advocate, the request shall be sent to the superintendent. Except for good cause, a request shall be made within 2 days after the youth is served notice as provided in s. DOC 373.71.

DOC 373.76(2) (2) After a request for witnesses has been received, the hearing officer shall review the request and determine witness availability as provided in sub. (3).

DOC 373.76(3) (3) A witness requested by the accused shall attend the disciplinary hearing unless one or more of the following apply:

DOC 373.76(3)(a) (a) There is a significant risk of bodily or psychological harm to the witness if he or she testifies as determined by the hearing officer.

DOC 373.76(3)(b) (b) The witness is a youth who does not want to testify.

DOC 373.76(3)(c) (c) The witness is not a youth or staff.

DOC 373.76(3)(d) (d) The witness is a youth who is unavailable due to hospitalization, illness, transfer, release or is otherwise unable to attend, or staff who is unavailable due to injury, illness, vacation or because he or she is no longer employed at that location, or is on extended leave.

DOC 373.76(3)(e) (e) The testimony is irrelevant to the question of guilt or innocence of the youth or to the disposition.

DOC 373.76(3)(f) (f) The testimony merely duplicates other evidence and would unduly prolong the hearing.

DOC 373.76(3)(g) (g) The witness is a member of the staff who is on a shift other than the shift on which the hearing is held.

DOC 373.76(4) (4) If a witness, approved to testify at the disciplinary hearing, is unavailable to testify for one of the reasons under sub. (3), the hearing officer may accept a signed, written statement, a transcript of a statement, an oral statement by telephone, a tape recorded statement or may require the advocate or other staff person to interview the witness and report the interview in writing.

DOC 373.76(5) (5) If the hearing officer determines under sub. (3) (a) that a witness is unavailable and the hearing officer considers a signed, written statement from that witness, the identity of the witness may not be revealed to the accused. The statement shall be disclosed to the accused only if it can be edited so that it will not disclose the identity of the witness.

DOC 373.76(6) (6) After determining which witnesses will be called for the accused, the hearing officer shall schedule a time for a hearing when all of the following persons can be present:

DOC 373.76(6)(a) (a) The hearing officer.

DOC 373.76(6)(b) (b) The youth’s advocate, if any.

DOC 373.76(6)(c) (c) The witnesses.

DOC 373.76(6)(d) (d) The accused.

DOC 373.76(7) (7) In the case of youth witnesses and the accused, the hearing officer, when scheduling the disciplinary hearing, shall attempt to avoid conflict with off grounds activities, but these persons may be required to attend the disciplinary hearing even if it conflicts with those activities.

DOC 373.76(8) (8) The hearing officer or other designated staff shall notify the accused, the advocate, if any, and all witnesses of the time and location of the disciplinary hearing.

DOC 373.76 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.77 DOC 373.77 Disciplinary hearing: hearing officers.

DOC 373.77(1) (1) The superintendent shall designate staff to serve as hearing officers who make decisions in disciplinary hearings.

DOC 373.77(2) (2) The superintendent may designate 2 or 3 hearing officers to function as a hearing committee assigned to fulfill the role of a single hearing officer in a disciplinary hearing. If a hearing committee is designated to conduct the disciplinary hearing, a decision shall be rendered as follows:

DOC 373.77(2)(a) (a) A decision by a committee of 3 requires the concurrence of a majority of members of the committee.

DOC 373.77(2)(b) (b) A decision by a committee of 2 must be unanimous. If a unanimous decision cannot be reached, the matter shall be referred to the superintendent for decision.

DOC 373.77(3) (3) No person who was directly involved in an incident which is the subject of a disciplinary hearing may serve as hearing officer or be on the committee for that disciplinary hearing.

DOC 373.77(4) (4) The hearing officer or committee shall base its findings, conclusions and decisions on discipline solely on this chapter and the evidence which was presented at the disciplinary hearing.

DOC 373.77 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.78 DOC 373.78 Disciplinary hearing: evidence.

DOC 373.78(1) (1) During a disciplinary hearing, the hearing officer shall consider any relevant evidence, whether or not it would be admissible in a court of law and whether or not any violation of this chapter occurred in the process of gathering the evidence, unless any of the following applies:

DOC 373.78(1)(a) (a) The evidence is not reliable.

DOC 373.78(1)(b) (b) The evidence duplicates evidence already received at the disciplinary hearing.

DOC 373.78(2) (2) Evidence is relevant if that evidence makes it appear more likely or less likely that the youth committed the violation of which the youth is accused.

DOC 373.78(3) (3) A finding of guilt shall be based on a preponderance of the evidence.

DOC 373.78(4) (4) After a finding of guilt by the hearing officer, confidential informant material shall be forwarded to the superintendent for retention in restricted security records.

DOC 373.78 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.79 DOC 373.79 Recordkeeping.

DOC 373.79(1) (1) A record of a conduct rule violation may be included in a youth’s permanent record only if the youth was found guilty by summary disciplinary procedure, as provided in s. DOC 373.68 or by a hearing officer under this chapter.

DOC 373.79(2) (2) Following an appeal in which the finding of guilty is reversed, all records of the conduct rule violation shall be removed from the youth’s records.

DOC 373.79(3) (3) No record of an alleged violation of the conduct rules which has been dismissed or for which the youth was found not guilty, may be maintained in any official record or considered in making program or release decisions. Information concerning the alleged violation may be retained for statistical or administrative purposes only, but without personal identifiers.

DOC 373.79 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.80 DOC 373.80 Dispositional alternatives for major conduct rule violations.

DOC 373.80(1) (1) If a youth’s guilt is not established by a preponderance of the evidence, the hearing officer shall dismiss the case.

DOC 373.80(2) (2) If a youth’s conduct, as proven, is not sufficient to warrant a major penalty, the hearing officer may order a disposition under s. DOC 373.68.

DOC 373.80(3) (3) If the hearing officer finds that a youth committed a major conduct rule violation, the hearing officer shall consider any extenuating or mitigating circumstances in determining the appropriate major penalty disposition, which may include any of the following:

DOC 373.80(3)(a) (a) First major conduct rule violation within 60 days: not to exceed close confinement for 3 days and modified confinement for an additional 40 days.

DOC 373.80(3)(b) (b) Second major conduct rule violation within 60 days: not to exceed close confinement for 4 days and modified confinement for an additional 50 days.

DOC 373.80(3)(c) (c) Third and each subsequent major conduct rule violation within 60 days: not to exceed close confinement for 6 days and modified confinement for an additional 60 days.

DOC 373.80(4) (4) A major penalty disposition may only be imposed concurrent with other major dispositions under this section.

DOC 373.80(5) (5) The minimum requirement of one-hour out-of-room time per day for close confinement may be suspended for a 24-hour period upon the recommendation of a physician or psychologist. The superintendent shall send a written report of the suspension to the administrator.

DOC 373.80(6) (6) If the hearing officer finds that a youth committed a conduct rule violation which resulted in damages or monetary loss, the hearing officer may direct that the youth pay restitution in addition to any disposition imposed under sub. (3).

DOC 373.80 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.81 DOC 373.81 Discipline: review by superintendent.

DOC 373.81(1) (1) A youth who has received summary discipline or a major penalty may appeal the decision to the superintendent within 7 days of the day the youth was notified of the decision. A youth who has difficulty preparing a written appeal shall be assisted by staff when requested to do so by the youth.

DOC 373.81(2) (2) The superintendent shall issue a final decision on the appeal within 7 days of receipt of the appeal. Failure to issue a final decision upholds the decision to discipline.

DOC 373.81(3) (3) The superintendent may do any of the following:

DOC 373.81(3)(a) (a) Affirm both the finding of guilt and the discipline imposed.

DOC 373.81(3)(b) (b) Affirm the finding of guilt, but reduce the discipline.

DOC 373.81(3)(c) (c) Reverse the finding of guilt.

DOC 373.81(3)(d) (d) Remand for reconsideration or rehearing, if there was a finding of guilt.

DOC 373.81(4) (4) Whether or not there is an appeal, the superintendent shall review all findings of guilt and the discipline imposed within 2 days, excluding weekends and holidays, of the time that the decision is imposed and may review the findings and discipline at any time thereafter. In either case, the superintendent may reverse the finding of guilt or reduce the discipline or remand for reconsideration or rehearing, if there was a finding of guilt.

DOC 373.81(5) (5) An institution may not require a youth to serve 90 or more continuous days of confinement without the approval of the administrator.

DOC 373.81 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.82 DOC 373.82 Basic services and privileges for youth serving a major penalty.

DOC 373.82(1) (1) All of the following are the minimum services and privileges for a youth serving a major penalty, unless suspended under sub. (2), because the youth is out of control:

DOC 373.82(1)(a) (a) Underwear, socks, outer clothing or, when warranted, clothing which will assist in the prevention of self-harm.

DOC 373.82(1)(b) (b) Appropriate bedding supplies.

DOC 373.82(1)(c) (c) Toothbrush, toothpaste and comb or pick.

DOC 373.82(1)(d) (d) Washcloth, towel, soap and shower.

DOC 373.82(1)(e) (e) Full meals at regularly scheduled times.

DOC 373.82(1)(f) (f) Reading and writing materials.

DOC 373.82(1)(g) (g) Daily exercise or recreation, to take place outside of room or cell.

DOC 373.82(1)(h) (h) Reasonable social worker contact and discussion, if requested by the youth.

DOC 373.82(1)(i) (i) Daily counselor contact.

DOC 373.82(1)(j) (j) Daily opportunity to clean room or cell.

DOC 373.82(1)(k) (k) Crisis intervention worker or other appropriate staff contacts and discussion.

DOC 373.82(1)(L) (L) Daily, except Saturday, Sunday and legal holidays, teacher contact. The youth shall be offered at least 3 hours of educational work a day. Youth with exceptional educational needs shall be offered instruction in accordance with law.

DOC 373.82(1)(m) (m) Health care.

DOC 373.82(1)(n) (n) Pastoral care services, if requested by the youth.

DOC 373.82(2) (2) A youth may be placed in control status and one or more of the items of personal property in sub. (1) may be removed temporarily if the youth is any of the following:

DOC 373.82(2)(a) (a) Physically out of control and abusing or misusing any item of personal property under sub. (1) in a manner that creates a dangerous situation or serious disruption.

DOC 373.82(2)(b) (b) Escalating toward the loss of physical control and, based on the youth’s behavior and history, it is reasonably believed that a dangerous situation or serious disruption will occur if the youth is not placed in control status and one or more items of personal property in sub. (1) are not removed temporarily.

DOC 373.82(2)(c) (c) In observation status under ch. DOC 375.

DOC 373.82(3) (3) The maximum period of time a youth may remain in control status without approval of the superintendent is 72 hours.

DOC 373.82(4) (4) When a youth is retained in control status more than 72 hours, a clinical evaluation to consider appropriateness for transfer to a mental health facility shall be conducted as soon as is reasonably possible.

DOC 373.82 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.83 DOC 373.83 Referral for prosecution.

DOC 373.83(1) (1) The superintendent of each institution shall develop, in conjunction with local law enforcement authorities, a policy regarding conduct rule violations to be considered for referral for prosecution.

DOC 373.83(2) (2) When a conduct rule violation which is also a crime is alleged, the superintendent shall review the incident in light of the policy to determine if the case should be referred for prosecution and if necessary, shall order an investigation to determine if sufficient evidence exists for referral.