WSR 05-13-004

DEPARTMENT OF CORRECTIONS


[ Filed June 2, 2005, 10:54 a.m. , effective July 2, 2005 ]

Reviser's note: The following material has not been adopted under the Administrative Procedure Act, chapter 34.05 RCW, but has been filed in the office of the code reviser and is published in the Register exactly as filed. Following are amendments to chapter 137-48 WAC, Inmate mail and communications. This amendment is submitted for publication in the Washington State Register and the Washington Administrative Code. Pertinent information follows:

1. The amendments to chapter 137-48 WAC, Inmate mail and communications, are adopted as of June 2, 2002 [2005].

2. The effective date of these amendments shall be July 2, 2005.

3. I certify pursuant to RCW 34.05.030 that the rule as stated above is excluded from the Administrative Procedure Act.

Patria Robinson-Martin

for Harold W. Clarke

Secretary

OTS-8028.2


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-010   Purpose.   The purpose of these rules is to maintain the safety, security, and discipline of adult prison((s and prerelease)) facilities operated under the jurisdiction of the department of corrections in accordance with Title 72 RCW et al., by establishing guidelines for the development of departmental((, division,)) and institution level policies and rules governing the receipt and sending of mail by inmates to prevent the transmission of illegal items or contraband into or out of an institution. These rules shall not apply to work release facilities under the jurisdiction of the department.

[91-23-103, 137-48-010, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-010, filed 9/27/83.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-020   Definitions.   (1) "Contraband" ((consists of all)) includes illegal items, explosives, ((instruments which if used may cause bodily harm to the person of another, weapons,)) deadly weapons, alcoholic beverages, ((and)) drugs, ((or)) tobacco products, controlled substances ((as defined by chapter 69.50 RCW. Contraband also includes)) and any item that is controlled, limited, or prohibited on the grounds or within the secure perimeter of a correctional facility as defined by ((departmental, division, or institutional regulation and approved by the secretary of the department, or the division director/designee)) department or institution policy.

(2) (("Disposable income" funds in an inmate's trust account from any source, which are not frozen or debited by application of (LFO) legal financial obligations or disciplinary/administrative restitution mandates.

(3) "Division director" the director of community corrections or prisons or his/her designee(s).

(4))) "Emergency situations" are critical illnesses, deaths, or similar situations experienced by members of the inmate's family or the inmate.

(((5))) (3) "Illegal items" are items which are unlawful for any person to possess within the community as defined by the laws of the state of Washington, controlled substances as defined and listed in chapter 69.50 RCW or any weapon, firearm, or any instrument which, if used, could produce serious bodily injury to ((the person of)) another.

(((6))) (4) "Indigent inmate" an inmate who has less than a ten-dollar balance of disposable income in his/her trust fund account on the day ((of the postage)) a request is made to utilize funds and during the ((seven)) thirty days ((preceding)) previous to the ((postage)) request((; except that:

(a) An inmate who has received at least twenty dollars cumulative from any source(s) shall not be considered indigent for thirty days following the accumulation of the twenty dollars unless the disposable income account balance is reduced to less than ten dollars by mandatory LFO, disciplinary sanction, or other mandatory administrative process; or

(b) An inmate who receives a lump sum of five hundred dollars or more from any source shall not be considered indigent for a period of six months from the date of receipt of the five hundred dollars unless the disposable income account balance is reduced to less than ten dollars by application of LFO obligations, a disciplinary sanction, or any legislative or administratively mandated requirements)).

(((7))) (5) "Inspection of mail" the physical act of opening, touching, ((smelling,)) and/or reading of mail, the use of mechanical or chemical systems and/or the use of animals to determine the presence of contraband or illegal items.

(((8))) (6) "Legal mail" is correspondence to or from courts and court staff (judges, clerks of the court, judicial law clerks, etc.), attorneys ((and persons working for attorneys and to)), established groups of attorneys involved in the representation of inmates in judicial proceedings (ACLU, legal services groups, etc.)((. Legal mail may also be mail to or from any local, county, state, or national, or foreign governmental agency, executive or legislative body, and/or any person representing such agency or body in an)), the President or Vice-President of the United States, members of the United States Congress, embassies and consulates, the United States Department of Justice, state attorney general, governors, members of the state legislature, and law enforcement officers in their official capacity.

((Note:)) To be considered and therefore handled as "legal mail" the correspondence must be clearly marked "legal mail" on the outside front of the envelope, and must have a return address which clearly indicates that the mail is from one of the above listed sources.

(((9))) (7) "Letters" consist of handwritten/typed communications and/or written/pictorial enclosures to and from inmates. A standard first class, one ounce letter shall be consistent with the dimensions, weight, and thickness as prescribed by the United States Postal Service. A properly addressed and stamped post card or greeting card shall be processed with the same standards as described above for a first class one ounce letter. Nonstandard first class mail requires a surcharge as established by the United States Postal Service.

(((10))) (8) "Mail" consists of letters, publications, or packages delivered by the United States Post Office or by other established and authorized carriers.

(((11))) (9) "Packages" a wrapped or boxed object; a parcel or bundle containing one or more objects, a container in which something is packed for storage or transport or mailing.

(((12))) (10) "Publications" consists of reproduced handwritten or typed/printed or pictorial materials including books, periodicals, newspapers, magazines, and pamphlets.

(((13))) (11) "Return address" for an inmate this includes the full committed name, and may include any other legal name, DOC number, housing assignment, and the full name of the correctional facility from which the correspondence is mailed. For a free citizen this includes a reasonable return address as recognized by the United States Postal Service.

(((14))) (12) "Secretary" is the secretary of the department of corrections or his/her designee(s).

(((15))) (13) "Sexually explicit" means any pictorial representation that is intended for sexual gratification and shows male or female genitalia, full frontal nudity, or depicts one or more of the following sexual behaviors:

(a) One or more of the participants appears to be nonconsenting;

(b) One or more of the participants appears to be acting in a forceful, threatening, or violent manner;

(c) One or more of the participants appears to be dominating one or more of the other participants or one or more of the participants appears to be in a submissive role or one or more of the participants appears to be degraded, humiliated, or appears to willingly engage in behavior that is degrading or humiliating;

(d) One of the participants appears to be a minor, or a minor alone is depicted in a sexually suggestive way;

(e) Bodily excretory behavior which appears to be sexual in nature;

(f) Bestiality, sadomasochistic behavior, and/or bondage; or

(g) Depicts sexual behaviors including, but not limited to, intercourse/penetration, sodomy, fellatio, cunninlingus, anilingus, or masturbation.

The term sexually explicit also refers to those written materials that are intended for sexual gratification and describe one or more of the above sexual behaviors as the predominant theme of the publication or letter.

(14) "Superintendent" means the superintendent of a correctional facility or his/her designee(s).

[91-23-103, 137-48-020, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.09.050, 72.08.103, 72.13.080 and 72.15.040. 84-08-011 (Order 84-04), 137-48-020, filed 3/26/84. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-020, filed 9/27/83. Formerly WAC 275-96-005.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-030   Inspection of mail.   (1) All mail intended for or to be sent by an inmate, excluding legal mail discussed in subsection (3) of this section, may be inspected at any time by the staff designated by the superintendent or his/her designee(s). Mail may be disapproved for receipt or transmittal in accordance with WAC 137-48-040.

(2) No person who inspects, or participates in the inspection, of an inmate's mail, shall disclose the contents except in the cause of his/her official duties.

(3) Mail (incoming or outgoing) which is clearly identified on the outside of the envelope as legal mail, as defined in WAC 137-48-020, shall be inspected only in the presence of the inmate. Legal mail shall not be read without a search warrant but may be ((visually scanned)) inspected in the presence of the inmate to verify legal mail status and that the mail is free of contraband.

(4) Mail containing illegal items or contraband shall be held and disposed of in accordance with the procedures set forth in chapter 137-36 WAC or as otherwise stated in this chapter.

[91-23-103, 137-48-030, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-030, filed 9/27/83.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-040   Restriction of incoming and/or outgoing mail.   (1) Incoming mail to inmates may be disapproved for receipt for any one of the following reasons:

(a) The mail ((contains)) threatens illegal activity, including but not limited to, threats of physical harm ((against any person or threats of criminal activity.

(b) The mail threatens)), blackmail or extortion.

(((c) The)) (b) The mail threatens the safety and security of the institution, including but not limited to, mail ((concerns)) concerning sending contraband ((in or out of the institution.

(d) The mail contains plans to)) escape((.

(e) The mail contains)) plans, security devices, or mail that is in a code, a foreign language that cannot be interpreted, does not contain a return address, contains gang symbols, plans for activities in violation of institutional rules((, such as riots.

(f) The mail concerns plans for criminal activity.

(g) The mail is in code.

(h) The mail is in a foreign language, its contents are not understood by the reader, and attempts to have the letter interpreted have been unsuccessful.

(i) The mail)) or contains information which, if communicated, would create a risk of violence and/or physical harm.

(((j))) (c) The mail ((contains)) is susceptible to the introduction of contraband, including but not limited to, altered publications, mail with unknown substances on or in it, mail purported to be legal mail that is general correspondence, cash or checks, postage stamps, stickers, photos wherein the nonphoto side is or can be separated, publications not mailed directly from vendor, items not ordered and approved through institution channels, greeting cards that are padded, laminated/layered or musical.

(((k) The mail contains obscene or sexually explicit materials as defined in department policy and/or division directives.

(l))) (d) Any mail or publication that is deemed to be a threat to legitimate penological objectives, including but not limited to, sexually explicit materials.

(((m) The mail advocates that any ethnic, racial, or religious group is inferior for any reason and makes such group an object of ridicule and scorn, and it may reasonably be thought to precipitate a violent confrontation between the recipient and a member or members of the target group.)) (e) The mail contains inmate to inmate correspondence that has not been approved by the superintendent in compliance with department policy.

(f) The mail contains items identified by the department secretary or designee as not authorized, including but not limited to, multiple copies of documents, mailings soliciting or offering games of chance, clippings from books or magazines.

(g) The mail is from an individual with whom contact is restricted in compliance with the judgment and sentence, a no contact order, department policy.

(2) Outgoing mail from inmates of institutions may be disapproved for mailing for any one of the following reasons:

(a) For any one of the reasons set forth in WAC 137-48-040(1).

(b) The mail is addressed to a minor whose parents or guardian have objected in writing to such correspondence.

(c) An individual or their guardian who previously has been sent obscene or threatening mail by the inmate has complained or has asked that such mail not be received.

(d) The mail solicits money or goods from a person or organization other than the immediate family of the inmate without the permission of the superintendent. The above provisions may not be construed to preclude the purchase of noncontraband goods or payment for such goods which have been approved by the superintendent or his/her designee.

(e) The outside of the mail (envelope or package) does not contain a return address as defined in WAC 137-48-020.

(3) No mail is to be restricted for the reason that it appeals to a particular ethnic, racial, or religious group, or that it contains critical opinions of departmental policy or departmental employees, unless the mail is also judged to be a threat to legitimate penological objectives.

(4) In addition to those reasons cited in this section, packages sent either to or from an inmate are subject to the following restrictions:

(a) An inmate may receive one gift package not to exceed fifteen pounds in weight on a quarterly basis. Quarterly periods shall consist of December through February, March through May, June through August, and September through November. Rules governing the contents of quarterly packages shall be developed specifically by each institutional superintendent and approved by ((the division director)) staff designated by the secretary. The superintendent may allow exceptions from the one gift package limitation and weight limitation provided that appropriate contraband controls are maintained.

(b) The contents of the quarterly package shall be restricted to those items that are otherwise not available to the inmate through the institutional store or other purchasing outlet provided by the institution. A replacement package may be sent during the same quarter for damaged packages that are returned to the sender by the inmate. ((Packages containing contraband shall be refused delivery to the inmate and will be counted as the package for that quarter.))

(c) Prepaid merchandise approved by the superintendent or designee and ordered by the inmate from any wholesaler or retailer shall not be considered one of the quarterly packages.

(d) Inmates may mail packages containing materials which have been sent to him or her in the institution or gifts consisting of his or her own hobby craft or curio work. Packages must be made and mailed at the inmate's expense.

(e) Newly admitted inmates at any department of corrections operated reception center will not receive packages while assigned to the reception center.

[91-23-103, 137-48-040, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.01.090. 86-21-058 (Order 86-06), 137-48-040, filed 10/14/86. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-040, filed 9/27/83. Formerly WAC 275-96-021 and 275-96-022.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-050   Procedures for restrictions of incoming and/or outgoing mail.   (1) If an inmate's incoming or outgoing mail is restricted, written notification will be provided to the inmate by the mailroom staff. This notification shall be provided to the inmate and the sender of the specific publication, letter, or package which has been restricted and the reason for this action. The notice shall contain notification to the inmate that the restriction becomes final within ten days of the initial notice. The superintendent or his/her designee shall review the restriction within the ten-day period of time and shall either uphold the restriction, or allow for the delivery of the mail.

(2) The inmate and sender shall be advised in writing of his/her right to seek review of the decision to restrict his/her mail. The review shall be sought by writing directly to the ((director, division of community corrections or prisons)) superintendent/designee within ten calendar days of the initial restriction decision.

(3) Upon receipt of an inmate's and/or sender's appeal, the ((director of community corrections or prisons)) superintendent or his/her designee shall affirm or reverse the action taken at the institution ((level)) and shall ((advise the inmate and sender)) send a notice of the decision in writing ((of this action)) within ten working days from the receipt of the inmate's or sender's written request.

(4) The inmate and the sender may seek a review of the superintendent's/designee's decision by writing directly to the staff designated by the secretary within ten calendar days of the decision.

(5) Upon receipt of the offender's or sender's appeal, the staff designated by the secretary will affirm or reverse the action taken at the facility and will advise the offender or sender in writing of this action within ten calendar days from the receipt of the offender's or sender's written request.

(6) Incarcerated offenders are financially responsible for disposing of their own unauthorized personal property by shipping it to a nonincarcerated person designated by the offender at the offender's expense. The sender should not send stamps or money to the facility or headquarters for this purpose.

(7) When a decision is rendered regarding a particular issue of a publication, that decision shall be binding for all prison facilities ((in the respective correctional division)). A ((division-wide)) statewide notification shall be promptly issued from the ((office of the director)) final reviewer when the decision is rendered.

(((5))) (8) If a package contains contraband and is subject to criminal prosecution, the entire package will be turned over to the appropriate law enforcement agency. Items of contraband not subject to criminal prosecution will be disposed of in accordance with procedures set forth in departmental((, division,)) and facility regulations as authorized by chapter 137-36 WAC.

[91-23-103, 137-48-050, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-050, filed 9/27/83. Formerly WAC 275-96-070.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-060   Mail costs.   (1) Except as otherwise stated in this section, mail costs shall be the responsibility of the inmate.

(2) Mail which arrives at the institution with postage due may, at the option of the superintendent, be delivered to the inmate. The institution may pay the postage due in accordance with subsection (3) of this section, or hold the mail for a reasonable period of time so as to allow the inmate to arrange for payment of the postage due. If such arrangements are not made within the time provided, the package/mail may be donated to charity or discarded.

(3) Indigent inmates shall be authorized to receive postage up to the equivalent to the mailing cost of ten standard((, one ounce,)) first class letters per week. This indigent postage provision shall cover both legal and/or regular letters ((regardless of the number of letters identified as legal mail)).

(4) The department shall recoup any expenditures made by the institution for postage due on incoming mail and/or indigent postage for letters, (as identified in subsection (3) of this section) may be recouped by the institution whenever such indigent inmate has ten dollars or more of disposable income in his/her trust fund account.

[91-23-103, 137-48-060, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.09.050, 72.08.103, 72.13.080 and 72.15.040. 84-08-011 (Order 84-04), 137-48-060, filed 3/26/84. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-060, filed 9/27/83. Formerly WAC 275-96-060.]


AMENDATORY SECTION(Amending WSR 91-23-103, filed 11/20/91, effective 1/1/92)

WAC 137-48-080   Telephone usage.   (1) Telephone facilities shall be provided in appropriate numbers and locations to permit reasonable and equitable access to all inmates, except inmates of the reception center and those inmates in disciplinary segregation.

(2) The superintendent shall promulgate written regulations providing for access of inmates to additional telephone facilities in emergency situations.

(3) The superintendent shall promulgate written regulations outlining the hours of telephone availability, maximum length of calls (not less than five minutes), limitations on telephone use, and provisions for monitoring, recording, and operator-announced calls as provided for in RCW ((9.73.145)) 9.73.095.

[91-23-103, 137-48-080, filed 11/20/91, effective 1/1/92. Statutory Authority: RCW 72.08.380, 72.09.050 and 72.12.140. 83-20-036 (Order 83-09), 137-48-080, filed 9/27/83. Formerly WAC 275-96-065.]

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