WISCONSIN DEPARTMENT OF CORRECTIONS
PROPOSED RULE MAKING ORDER
INTRODUCTORY CLAUSE
The statement of scope for this rule was approved by the Governor on August 26, 2021, published as Scope Statement No. 078-21 in Register No. 789A2 on September 13, 2021 and approved by Secretary Kevin Carr on September 29, 2021. The Wisconsin Department of Corrections proposes an order to repeal DOC 374, DOC 376.03(2), (3), (6), (13), (14), (15) and (20), 376.14(4)(b), 376.17(2), 376.17(3)(f), 376.20(1)(d) and (e), to renumber and amend DOC 376.14(4)(a), to amend DOC 376.03(4), (7), (17), (19), (21), (22), (24), (25) and (29), 376.06, 376.10(1)(intro), (g), (2)(e), (7) and (8), 376.11, 376.12(2) and (4), 376.14(1), (2), (3), (5), (6), and (7)(intro), 376.17(1), (3)(a), (3)(b), (3)(e), (3)(g), (3)(h)(intro), 2., 4., and 5., 376.19, 376.20(1)(intro), (1)(a), (1)(b), (1)(c), (2), (3)(c), (3)(d), (5) and (8)(c) and 376.21(1)(intro), (a), (b), (2), (3)(c) and (4), to repeal and recreate DOC 376.03(10), (12), (16) and (28), 376.04, 376.05, 376.07, 376.08, 376.09, 376.13, 376.15 and 376.18 and to create DOC 376.03(4m), (8m), (21m), (22m) and (28m) and 376.045.
RULE SUMMARY
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 and for implementing offender review, community supervision and the serious juvenile offender program.
4. Related statute or rule: Wisconsin Statute Chapter 938 5. Plain language analysis: This rulemaking order updates DOC 374 and 376 to reflect changes in the law, operations and best practices for security and managing youth behavior in Type 1 juvenile correctional facilities. At this time, administrative rule allows for the use of punitive room confinement, OC-spray and other chemical agents, mechanical restraints and strip searches. However, the Department’s philosophy surrounding administrative confinement and uses of force has evolved significantly to align with current juvenile focused best practices and national standards. This rulemaking order updates DOC 374 and 376 to align with these philosophies.
Currently, administrative confinement is permissible when a youth’s behavior presents a danger to self or others, or poses a serious risk to institution security, including but not limited to, escape risk or disturbance and release from administrative confinement is dependent on the administrative confinement review committee hearing that occurs at least one day after placement in administrative confinement. The proposed rulemaking order would allow for placement in administrative confinement only when the youth poses a serious risk of imminent physical harm to others. Additionally, the time in initial confinement may not exceed four hours and it must be the goal to return the youth to the general population as soon as possible.
Furthermore, the proposed rulemaking order prohibits the use of oleoresin capsicum and other chemical agents. The use of chemical agents is currently allowed in certain circumstances. The proposed rulemaking order also limits the use of mechanical restraints. Finally, the proposed rulemaking order limits the use of strip searches to only be allowable if there is probable cause to believe that the individual youth possess drugs or weapons that could not be discovered through less intrusive means and allows for the use of body scans in certain circumstances. Current administrative rule allows for more broad use of mechanical restraints and strip searches and does not allow for the use of body scans.
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 best practices for managing youth behavior in a secured correctional facility in Wisconsin.
7. Comparison with similar rules in adjacent states:
The adjacent states have similar rules to the proposed Wisconsin rule. The adjacent states have limits on the punishments and type of force that may be used in juvenile correctional facilities. For example, in Iowa no degrading punishment such as securing the juvenile to a stationary object or enclosing a juvenile in a confined space, is allowed. In most adjacent states the use of room confinement, mechanical restraints and chemical agents is limited to certain situations and each state has specific policies on the how and when searches of youth are allowed. Additionally, some of the adjacent states require counts of youth at certain time intervals and require that behavior expectations are communicated to youth within a certain timeframe upon admission to the facility. Some states require that educational opportunities and rehabilitation plans are provided for youth within the facility. Lastly, several of the adjacent states require certain training, including trauma informed care training, for staff.
a. Illinois: Illinois administrative code provides standards for county juvenile detention facilities. These standards include training staff on several topics including trauma, trauma informed care, and emergency procedures, searching youth prior to leaving and entering the facility, irregularly searching youth and their quarters to detect the presence of weapons and other contraband and specifying conditions for strip searches and visual body cavity searches. Ill. Admin Code tit. 20 § 2620.20 and 2602.140. Staff members must maintain a record of visual contact with each youth no less than once every 30 minutes and at least every 10 minutes for a youth on crisis status. Ill. Admin. Code tit. § 2602.130(a)(2). Additionally, a head count must be done and recorded at least four times daily. Ill. Admin Code tit. § 2602.140(k).
There are also several standards regarding which types of punishment are allowed within county juvenile detention facilities. Youth shall not be deprived of basic rights such as clean clothes or personal hygiene items as part of a disciplinary response and corporal punishment or any punishment designed to humiliate or degrade youth is prohibited. Ill. Admin. Code tit. § 2602.170(e). The use of force can be authorized in certain circumstances but only the least amount of force necessary must be used and a complete written report must be made when force is used. Ill. Admin. Code tit. § 2602.170(f). Mechanical restraints may only be used when other methods of control are not effective and only for the time necessary for the youth to regain control. Restraints may not be used for disciplinary reasons. Ill. Admin. Code tit. § 2602.170(g). The use of chemical agents is generally prohibited but may be used if the youth’s current behavior indicates that a physical hold or mechanical restraint would be impossible or insufficient to effectively diminish the imminent risk of serious harm. Ill. Admin. Code tit. § 2602.170(h). Lastly, the agency must have written policies and procedures that limit the use of room confinement as punishment for rule violations. Room confinement must not be used for a fixed period of time, but only until the youth is calm enough to rejoin programming without being a risk to the safety of others. Ill. Admin. Code tit. § 2602.170(i).
b. Iowa: Iowa has several standards regarding the treatment of youth within correctional facilities. Per Iowa Code, a child may be placed in detention only in a juvenile detention home, any other suitable place designated by the court, a room in a facility intended or used for the detention of adults if there is probable cause to believe that the child has committed certain offenses or a place used for the detention of children prior to an adjudicatory hearing. Iowa Code § 232.22(3). Juveniles admitted to jails shall be monitored at all times and shall be observed by means of personal supervisory checks at no more than 30-minute intervals. 201 IAC 50.13(2)(a)(6). When juveniles are in jail on nonsecure holds, the juvenile is not to be physically secured to any stationary object and must be under continuous visual supervision. 201 IAC 50.24(1). Additionally, each nonsecure site must develop a policy of posted orders which protects juveniles against degrading punishment such as corporal punishment, verbal abuse, binding or trying to restrict movement, or enclosing the juvenile in a confined space. 201 IAC 50.24(3). An attendant must make sure the juvenile is aware of the policies of the nonsecure holding area. 201 IAC 50.24(4). Within the facility all items given to the juvenile are subject to being searched and visitors to correctional facilities may be requested to submit to a personal search (pat down) or an electronic search for weapons or contraband. 201 IAC 50.24(4) and 201 IAC 20.3(14).
c. Michigan: Per Michigan administrative rule, the warden for each institution is given authority and responsibility over several aspects of their institution. These responsibilities include organizing and enforcing procedures for security, being responsible for discipline at the institution, designating a program classification committee to determine appropriate programs for prisoners, and ensuring that department standards of safety, security, and humane treatment are met. R. 791.2205.
In addition, the Department of Corrections is given certain authority and responsibility under Michigan administrative rule. The Department must conduct periodic and spontaneous searches of housing units and other areas within all institutions and facilities. R. 791.2210(1). Prisoners may also be searched in accordance with Department policy. R. 791.2210(4). Additionally, the Department may conduct a search for contraband of a person who enters a correctional facility as a visitor, volunteer, employee, contractor, or in any other capacity. R. 791.2210(5).
Michigan administrative rule also provides guidelines for the use of force and chemical agents. A facility shall establish and maintain written policies, procedures, and practices which restrict the use of physical force to instances of justifiable self-defense, protection of others, protection of property, and prevention of escapes, and then only as a last resort and in accordance with appropriate statutory authority. Furthermore, physical force shall not be used as punishment and a written report much be prepared and reviewed after force is used. R. 791.706. Chemical agents may be used by authorized personnel. These personnel shall receive appropriate training in the use of chemical agents and in the treatment of individuals exposed to a chemical agent. R. 791.703. Lastly, all staff shall be trained to respond to emergencies in accordance with written emergency plans. R. 791.714.
For youth correctional facilities, educational services shall be provided for juvenile prisoners housed at the facility who have not earned a high school diploma or received a general education certificate. MCL 791.220g(11). Additionally, the department shall develop rehabilitation plans for prisoners in the custody of the department who are approximately 18 to 22 years of age that specifically take the prisoner’s age into consideration. MCL 791.262(d)(1). The department shall provide, to the extent it is able to do so, programming designed for youth rehabilitation for prisoners in the custody of the department who are approximately 18 to 22 years of age. MCL 791.262(d)(2). This programming may include mentoring programs, career skills evaluation, and career counseling. MCL 791.262(d)(3).
d. Minnesota: Through administrative rule, the Minnesota Department of Corrections and the Minnesota Department of Human Services license and certify providers of residential care and treatment and detention and foster care services for children in out-of-home placement. For all of these types of facilities, the license holder must provide services that fulfill the basic rights of a resident, including the right to receive a public education, the right to participate in the development of the resident’s treatment and case plan and the right to be free from restraint or seclusion used for a purpose other than to protect the resident from imminent danger to self or others, except for the use of disciplinary room time as it is allowed in the correctional facility’s discipline plan. Minn. R. 2960.0050(1) and 2960.0080(2).
The license holder must communicate verbally and in writing to all residents the facility’s rules which 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, and the circumstances, if any, that will result in time-out or the use of a restrictive procedure. Minn. R. 2960.0080(4). The license holder must either give a copy to or advise the resident of the facility’s rules within 24 hours of admission. Minn. R. 2960.0250(3). The license holder must also have a written emergency plan that is reviewed with staff and residents at least once every six months. Minn. R. 2960.0080(14). Upon admission to a detention facility, the resident and their belongings must be examined by a staff person of the same gender as the resident. Minn. R. 2960.0250(4).
Additionally, the license holder must have discipline policies and procedures in place. In all facilities, the license holder must not subject residents to certain discipline techniques including corporal punishment and the use of restrictive techniques or procedures as punishment. Minn. R. 2960.0080(5). If the license holder uses time-out, staff must assess the resident at least every 30 minutes to determine when the resident may return to ongoing activity at the facility and must document the use of time-out. Minn. R. 2960.0080(5). Staff must have completed several specific trainings before they may use time-out on a resident. Minn. R. 2960.0080(5).
A license holder who wishes to use a restrictive procedure must have a restrictive procedure plan that includes a list of restrictive procedures, a description of the physical holding techniques which will be used by the program, a description of how the license holder will monitor and control the emergency use of restrictive procedures, and a description of the training that staff who use restrictive procedures must have prior to staff implementing the emergency use of restrictive procedures. Minn. R. 2960.0710(1) and 2960.0710(2).
Those licensed by the Department of Corrections may seek certification to use seclusion, mechanical restraints and disciplinary room time. Minn. R. 2960.0710(4). Mechanical restraints may only be used when transporting a resident or in an emergency as a response to imminent danger to a resident or others and when less restrictive interventions are determined to be ineffective. Minn. R. 2960.0710(7). The license holder must complete an administrative review of the use of a restrictive procedure within three working days after the use of the restrictive procedure. Minn. R. 2960.0710(10).
The use of chemical irritants is permitted only in secure facilities with correctional program services. Chemical irritants are not to be used except by order of the facility administrator to prevent a resident from seriously injuring the resident’s self or others or to prevent damage to a substantial amount of property. Minn. R. 2960.0370(3). The use of chemical irritants must be documented and facility personnel authorized to use chemical irritants must have documented annual training on this topic. Minn. R. 2960.0370(3).
There are several other requirements that must be met to be a licensed facility. The license holder must provide training for staff that is modified annually to meet the needs of individual staff persons and staff who will have direct contact with residents must attend and successfully complete orientation training before having unsupervised contact with residents. Minn. R. 2960.0100(3). The license holder must not assign staff in a manner that invades the privacy of residents or embarrasses or diminishes the dignity of residents by requiring staff of the opposite sex to perform strip searches or witnessing or assisting at internal body searches. Minn. R. 2960.0240(3). Finally, the license holder must know the whereabouts of each resident and there must be a resident count at least once each eight hours. Minn. R. 2960.0080(6) and Minn. R. 2960.0390.
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 a date to be determined. 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 Chapter 374 is repealed.
SECTION 2. DOC 376.03 (2) and (3) are repealed.
SECTION 3. DOC 376.03 (4) is amended to read:
DOC 376.03 (4) “Body contents search” means a search in which a youth is required to provide a biological sample which includes, but is not limited to, including deoxyribonucleic acid (DNA), urine, breath, or blood or stool for testing for the presence of intoxicating substances, as defined in s. DOC 373.46(1), in accordance with division procedures and methods approved by the state laboratory of hygiene, or to submit to a nonsurgical physical examination by medical staff which may include, but is not limited to, x-rays for detecting contraband for analysis. Body contents searches do not include examinations and tests requested by medical staff for medical reasons. SECTION 4. DOC 376.03 (4m) is created to read:
DOC 376.03 (4m) “Body scan search” means a search using body scan technology to produce an image capable of revealing the presence of drugs, weapons, or other harmful materials concealed on or inside the body.
SECTION 5. DOC 376.03 (6) is repealed.
SECTION 6. DOC 376.03 (7) is amended to read:
DOC 376.03 (7) “Contraband” has the meaning given in s. DOC 373.03(6) 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. SECTION 7. DOC 376.03 (8m) is created to read:
DOC 376.03 (8m) “De-escalation” means assisting a youth to regain behavioral control and to avoid physical intervention to defuse a volatile situation.
