Chapter DOC 373

DOC 373.72 DOC 373.72 Procedure when the right to a disciplinary hearing is waived. When a youth is alleged to have committed a major conduct rule violation, the superintendent has reviewed and approved the conduct report under s. DOC 373.70 and the youth has waived the right to a disciplinary hearing under s. DOC 373.71 (5), the following procedure shall be followed:

DOC 373.72(1) (1) The youth shall appear before a hearing officer not less than 24 hours nor more than 7 days after the date the approved conduct report is given to the youth.

DOC 373.72(1)(a) (a) The youth may request more time for preparation or a waiver of time limits. Unless there are good reasons for not granting more time or a waiver of time limits, a reasonable amount of additional time or a waiver of time limits shall be granted.

DOC 373.72(1)(b) (b) Time limits may be exceeded due to the absence or unavailability of the youth.

DOC 373.72(2) (2) 

DOC 373.72(2)(a) (a) The hearing officer shall review the conduct report and discuss it with the youth.

DOC 373.72(2)(b) (b) The youth shall be provided with an opportunity to respond to the report and present the youth’s version of the facts relating to the alleged violation.

DOC 373.72(2)(c) (c) The hearing officer may question the youth.

DOC 373.72(2)(d) (d) The youth has no right to a staff advocate, to confront witnesses or to have witnesses testify on the youth’s behalf. Staff who wrote the conduct report need not be present.

DOC 373.72(3) (3) The hearing officer shall decide the guilt or innocence of the youth on each charge, decide the discipline and announce these decisions to the youth. Penalties may be imposed under s. DOC 373.80.

DOC 373.72(4) (4) A finding of guilt shall be based on a preponderance of the evidence.

DOC 373.72(5) (5) The hearing officer shall document the findings for each charge, the reasons for the findings, the disposition and the reasons for the disposition. The hearing officer shall submit the documentation to the superintendent.

DOC 373.72(6) (6) A person directly involved in preparing the conduct report may not conduct a disciplinary hearing on that conduct report.

DOC 373.72(7) (7) Any contraband related to the incident shall be disposed of in accordance with s. DOC 376.17.

DOC 373.72 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.73 DOC 373.73 Procedure for disciplinary hearings.

DOC 373.73(1) (1) The disciplinary hearing for a youth alleged to have committed a major conduct rule violation shall be held in accordance with this chapter.

DOC 373.73(1)(a) (a) At the disciplinary hearing, the conduct report shall be read aloud and all witnesses for or against the accused, including the accused and the staff who wrote the conduct report, shall have a chance to speak.

DOC 373.73(1)(b) (b) The hearing officer shall permit the youth or the youth’s advocate to question each of the witnesses. The hearing officer may permit or require the youth or the youth’s advocate to submit questions to the hearing officer to be asked of a witness. The hearing officer may forbid repetitive, disrespectful or irrelevant questions.

DOC 373.73(1)(c) (c) The hearing officer may require that physical evidence, if any exists, be offered.

DOC 373.73(2) (2) After the disciplinary hearing, the hearing officer shall deliberate, considering only the evidence which was presented. The institution has the burden of establishing guilt by a preponderance of the evidence. The hearing officer shall inform the accused and the youth’s advocate, if any, of the decision. The accused shall receive a written copy of the decision, the finding on each charge, the reasons and the disposition.

DOC 373.73(3) (3) The disciplinary hearing shall be held no sooner than one day and no later than 14 days after service of an approved conduct report alleging the violation. This period may be enlarged or diminished if the superintendent approves and the youth agrees.

DOC 373.73(4) (4) A youth may waive in writing the time limits set by this section.

DOC 373.73(5) (5) Any contraband related to the incident shall be disposed of in accordance with s. DOC 376.17.

DOC 373.73 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.74 DOC 373.74 Disciplinary hearing: advocates.

DOC 373.74(1) (1) A superintendent shall designate staff to serve as advocates for youth at disciplinary hearings. Preference shall be given to staff who volunteer. Staff may be selected by an accused youth, subject to staff’s consent and availability. Staff involved in the incident or in writing the report used in the disciplinary hearing process may not act as the youth’s advocate.

DOC 373.74(2) (2) Before the disciplinary hearing, the advocate shall help the youth understand the charges and help in the preparation and presentation of any defense, including gathering evidence and witness testimony and preparing the youth’s own statement. The advocate may speak on behalf of the youth at the disciplinary hearing or may help the youth state a defense. After the disciplinary hearing, the advocate shall discuss the case with the youth, ensure that the youth understands what happened at the disciplinary hearing and answer any questions.

DOC 373.74 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.75 DOC 373.75 Disciplinary hearing: location. The disciplinary hearing shall take place at the institution where the alleged conduct occurred or at the institution to which the youth has been transferred.

DOC 373.75 History History: Cr. Register, June, 2000, No. 534, eff. 7-1-00.

DOC 373.76 DOC 373.76 Disciplinary hearing: witnesses and notice.

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.