WSR 15-09-056 PROPOSED RULES DEPARTMENT OF CORRECTIONS [Filed April 13, 2015, 1:44 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 14-11-063.
Title of Rule and Other Identifying Information: Amendments to chapter 137-25 WAC, Serious infractions and chapter 137-28 WAC, Prisons—Discipline.
Hearing Location(s): Edna Lucille Goodrich (ELG) Building, 7345 Linderson Way S.W., Room 1034, Tumwater, WA 98501, on May 26, 2015, at 1:30 p.m.
Date of Intended Adoption: May 27, 2015.
Submit Written Comments to: John Nispel, P.O. Box 41114, Olympia, WA 98504-1114, e-mail john.nispel@doc.wa.gov, fax (360) 664-2009, by May 18, 2015.
Assistance for Persons with Disabilities: Contact John Nispel by May 18, 2015, (360) 725-8365.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To revise and reorganize ensuring the WACs are consistent with state law and are applied equally in prison and work release facilities. Language and content changed throughout for consistency, clarification, and alignment with policy, practice, procedure and technology. Serious infraction categories expanded to include Category D violations. Adjustments to WAC violations include:
Reasons Supporting Proposal: References to the department of corrections (DOC) policy should be accurate.
Statutory Authority for Adoption: RCW 72.01.090, 72.65.100.
Statute Being Implemented: RCW 72.09.130.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of corrections, governmental.
Name of Agency Personnel Responsible for Drafting: Autumn Witten, Headquarters, (360) 725-8831; Implementation and Enforcement: Michele Walker, Headquarters, (360) 725-8732.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. No financial impact.
April 13, 2015
Bernard Warner
Secretary
Chapter 137-25 WAC
SERIOUS ((INFRACTIONS)) VIOLATIONS—TOTAL AND PARTIAL CONFINEMENT FACILITIES AMENDATORY SECTION (Amending WSR 05-24-009 and 06-02-038, filed 11/28/05 and 12/28/05, effective 5/1/06)
WAC 137-25-010 Application of chapter.
The definitions and serious ((infractions)) violations described herein apply to offenders committed to both ((full)) total and partial confinement facilities.
AMENDATORY SECTION (Amending WSR 13-18-002, filed 8/21/13, effective 9/21/13)
WAC 137-25-020 Definitions.
((•)) For the purposes of this chapter, the following ((words)) terms have the following meanings:
((Abusive sexual contact - An incident in which the contact occurs without his/her consent or he/she was unable to consent or refuse. Abusive sexual contact includes one or more of the following behaviors:
• Intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of the victim. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit.
Adult correctional institution and institution - A facility identified in RCW 72.01.050(2) and any similar facility hereinafter established.)) (1) Aggravated assault - An assault resulting in a documented physical injury ((and)) requiring ((medical care (see definition of medical care).)) treatment in a medical facility/treatment center by medical staff including, but not limited to, bandaging, suturing, surgery, etc. An examination conducted by medical staff to determine whether an injury has been sustained shall not be considered treatment.
(2) Assault - A physical attack upon the body of another person. The attack may be made with any instrument including, but not limited to, weapons, body parts, food products, or bodily secretions.
((Attempted suicide - An unsuccessful attempt to kill oneself as determined by a medical or mental health professional.
Attempt)) (3) Attempting - Putting forth an effort to commit any ((infraction shall be considered the same as commission of the infraction. However, attempted aggravated assault shall be considered an attempted assault)) violation.
(4) Bodily harm - Physical pain or injury, illness, or impairment of physical condition.
((Cell tag - If contraband or other violation is discovered in an area under control of the inmate (such as within the confines or contents of a cell), the contraband or other violation shall be constructively attributed to the inmate(s) assigned to that area, unless the inmate(s) can establish a lack of involvement in the infraction at the disciplinary hearing.
Conspiracy - An agreement between two or more persons to commit an infraction. Conspiracy to commit an infraction shall be considered the same as commission of the infraction.
Deputy secretary - The deputy secretary of the office of correctional operations of the Washington state department of corrections, or the deputy secretary's designee.
Discovery - When a staff member discovers that an infraction has occurred or when an investigation into the incident is concluded.
Earned time - Means that portion of time an offender is eligible to earn for program participation approved by the classification process and consistent with his/her case management plan.
Earned release time - Means the combined earned time and good conduct time credit an offender is eligible to earn off the minimum term established by the indeterminate sentence review board or the sentencing court.
Good conduct time credits - That portion of an inmate's potential reduction to minimum term which is authorized by RCW 9.95.070 and 72.09.130 and which may be lost by receiving serious infractions.
Hearing officer - Staff member(s) designated by the superintendent or hearings program administrator to conduct disciplinary hearings.
Infraction - Commission of, attempt to commit, or conspiracy with another to commit any violation of rules as enumerated in this code. Aiding or abetting another to commit an infraction will be considered the same as commission of the infraction.
Infraction review officer - Staff member(s) designated by the superintendent to review a serious infraction.
Lesser included offense - Any infraction that must necessarily have been committed in order to commit another infraction.
Medical care - Any care conducted in a medical facility/treatment center by medical staff to treat a documented, physical injury, including, but not limited to, bandaging, suturing, surgery, etc. An examination conducted by medical staff to determine whether an injury has been sustained shall not be considered medical care.
Mental health professional - An individual with a unique set of knowledge, skills and abilities that makes him/her competent in either development, research, administration, assessment, prevention, treatment, education or training aimed at affecting the onset, occurrence, and maintenance of mental, behavioral and in some cases physical health disorders.
Mitigating factors - Factors to be considered by the infracting officer in deciding whether to charge a #328 general infraction rather than a #728 serious infraction. Also, factors to be considered by the infraction review officer, hearings officer, and superintendent for the purpose of deciding whether a #728 serious infraction should be reduced to a #328 general infraction. Mitigating factors may include the seriousness of the sexually explicit material involved, whether the inmate has been convicted of a sexually motivated crime, the treatment needs of the inmate, the prior history of similar behavior, and the source of the material.
Possession - Established when)) (5) Conspiring – Entering into an agreement with another person(s) to commit a violation.
(6) Facility – A correctional facility as defined in RCW 72.09.015.
(7) Infraction – A term designating the procedures and documents related to offender misconduct and the facility disciplinary process.
(8) Offender – An inmate as defined in RCW 72.09.015.
(9) Possessing – When an item(s) is found on ((a person)) an offender or in an ((area which is under the control of the individual(s) charged)) offender's assigned area of responsibility.
((Promptly - To act as soon as reasonably possible, consistent with institutional goals of safety, security, and rehabilitation.
Secretary - The secretary of the Washington state department of corrections, or the secretary's designee.
Sexual harassment - Any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.
Sexual assault - An incident in which the act occurs against the will of the victim (without his/her consent and/or he/she is unable to consent or refuse) as the result of the threat of the force or force used to obtain compliance. A sexual assault includes one or more of the following behaviors:
• Contact between the penis and the vagina or the penis and the anus involving penetration. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit;
• Contact between the mouth and the penis, vagina and/or anus;
• Penetration of the anal or genital opening of another person by hand, finger or other object.
Sexually explicit - Materials consist of any item displaying, portraying, depicting, or describing:
(a) Nudity, which includes exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, and/or female/transgender breast nipple(s);
(b) A sex act(s) which)) (10) Sex act - Includes, but is not limited to, any of the following acts: Genital-genital, oral-genital, anal-genital, or oral-anal contact/penetration((,)); genital or anal contact/penetration with an inanimate object((,)); masturbation((,)); sadistic/masochistic abuse((,)); bondage((,)); bestiality((,)); and/or bodily excretory behavior which appears to be sexual in nature((;
(c) A participant(s) who appears to be nonconsenting, dominated, degraded, humiliated, or in a submissive role, and/or acting in a forceful, threatening, dominating, or violent manner which appears to be sexual in nature; and/or
(d) Minor(s), or models depicting minors, in a sexually suggestive setting/pose/attire.
Staff member - For purposes of this chapter includes employees of the department of corrections, contract employees, and volunteers.
Superintendent - Superintendent of an adult correctional institution or the superintendent's designee.
Working days - Monday through Friday, excluding weekends and holidays)).
(11) Sexual assault against a staff member - An incident in which one or more of the following actions is taken or threatened against a staff member without his/her consent or when he/she is unable to consent or refuse:
(a) Contact between genitalia (i.e., penis, vagina) or between genitalia and the anus involving penetration, however slight. This does not include kicking, grabbing, or punching genitals when the intent is to harm or debilitate rather than to sexually exploit.
(b) Contact between the mouth and the penis, vagina, or anus.
(c) Penetration of the anal or genital opening of the staff member by hand, finger, or other object.
(12) Sexual contact against a staff member – Contact against a staff member without his/her consent or when the staff member is unable to consent or refuse which includes intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttock of the staff member. This does not include kicking, grabbing, or punching when the intent is to harm or debilitate rather than to sexually exploit.
(13) Sexual harassment against a staff member, visitor, or community member - Any word, action, gesture, or other behavior taken against a staff member, visitor, or community member that is sexual in nature and that would be offensive to a reasonable person.
(14) Staff member – A department of corrections employee, contract staff, or volunteer.
(15) Violation - The act of failing to comply with a rule enumerated in this chapter.
NEW SECTION
WAC 137-25-025 Adoption or revision of serious violations.
(1) The secretary may adopt and/or revise serious violations.
(2) Before adopting or revising a serious violation, the secretary shall, when applicable, follow the rule-making procedures of chapter 34.05 RCW, the Administrative Procedure Act.
(3) Nothing herein shall be construed as limiting the department of corrections' exclusion from the Administrative Procedure Act under RCW 34.05.030 (1)(c).
AMENDATORY SECTION (Amending WSR 14-12-095, filed 6/4/14, effective 7/1/14)
WAC 137-25-030 Serious ((infractions)) violations.
(1) Any of the following types of behavior may constitute a serious violation. Attempting or conspiring to commit one of the following violations, or aiding and abetting another to commit one of the following violations, shall be considered the same as committing the violation, with the exception of attempting an aggravated assault. Attempting to commit an aggravated assault will be charged as violation:
(a) #633 When against another offender;
(b) #704 When against a staff member; or
(c) #711 When against a visitor or community member.
Category A
Category B - Level 1
Category B - Level 2
Category B - Level 3
Category C - Level 1
Category C - Level 2
Category C - Level 3
Category D
(((1) In determining whether a #728 infraction or a #328 infraction pursuant to WAC 137-25-030 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-25-020.
(2) Attempts to commit infraction #611 or #635 are now separate infractions #612 and #636 for the Prison Rape Elimination Act (PREA) reporting purposes only and do not impact the definition in WAC 137-25-020 which includes "attempts.")) (2) If contraband or another violation is discovered in an offender's assigned area of responsibility, such as within the confines or contents of a cell, the contraband or other violation shall be constructively attributed (i.e., cell tagged) to all offenders assigned responsibility for that area.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. Chapter 137-28 WAC
DISCIPLINE—PRISONS((—DISCIPLINE)) AMENDATORY SECTION (Amending WSR 00-10-079, filed 5/2/00, effective 6/2/00)
WAC 137-28-140 Purpose.
The rules in this chapter provide a standardized system to determine whether misconduct by an ((inmate of an adult correctional institution)) offender has occurred, and to provide a system that clearly links an offender's behavior and participation in available work, training, education ((and work programs)), or other programming as determined through classification with the receipt or denial of earned ((early)) release time and other privileges as outlined in department policy.
The rules in this chapter shall not apply to proceedings of the indeterminate sentence review board.
The following rules set forth procedural guidelines. They do not create any procedural or substantive rights in any person, including any liberty interests in time credits, levels of custody, classification status, or other privileges. In accordance with Washington statutes, such matters are governed solely by the discretion of the department of corrections.
AMENDATORY SECTION (Amending WSR 13-18-002, filed 8/21/13, effective 9/21/13)
WAC 137-28-160 Definitions.
((•)) For the purposes of this chapter, the following ((words)) terms have the following meanings:
((Abusive sexual contact - An incident in which the contact occurs without his/her consent or he/she was unable to consent or refuse. Abusive sexual contact includes one or more of the following behaviors:
• Intentional touching, either directly or through the clothing of the genitalia, anus, groin, breast, inner thigh, or buttocks of the victim. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit.
Adult correctional institution and institution - A facility identified in RCW 72.01.050(2) and any similar facility hereinafter established.
Aggravated assault - An assault resulting in physical injury and requiring medical care (see definition of medical care).
Assault - A physical attack upon the body of another person. The attack may be made with any instrument including, but not limited to weapons, body parts, food products or bodily secretions.
Attempted suicide - An unsuccessful attempt to kill oneself as determined by a medical or mental health professional.
Attempt - Putting forth an effort to commit any infraction shall be considered the same as commission of the infraction. However, attempted aggravated assault shall be considered an attempted assault.
Bodily harm - Physical pain or injury, illness, or impairment of physical condition.
Cell tag - If contraband or other violation is discovered in an area under control of the inmate (such as within the confines or contents of a cell), the contraband or other violation shall be constructively attributed to the inmate(s) assigned to that area, unless the inmate(s) can establish a lack of involvement in the infraction at the disciplinary hearing.
Conspiracy - An agreement between two or more persons to commit an infraction. Conspiracy to commit an infraction shall be considered the same as commission of the infraction.
Deputy secretary - The deputy secretary of the office of correctional operations of the Washington state department of corrections, or the deputy secretary's designee.
Discovery - When a staff member discovers that an infraction has occurred or when an investigation into the incident is concluded.
Earned time - Means that portion of time an offender is eligible to earn for program participation approved by the classification process and consistent with his/her case management plan.
Earned release time - Means the combined earned time and good conduct time credit an offender is eligible to earn off the minimum term established by the indeterminate sentence review board or the sentencing court.
Good conduct time credits - That portion of an inmate's potential reduction to minimum term which is authorized by RCW 9.95.070 and 72.09.130 and which may be lost by receiving serious infractions.
Hearing officer - Staff member(s) designated by the superintendent to conduct disciplinary hearings.
Infraction - Commission of, attempt to commit, or conspiracy with another to commit any violation of prison rules as enumerated in this code. Aiding or abetting another to commit an infraction will be considered the same as commission of the infraction.
Infraction review officer - Staff member(s) designated by the superintendent to review a serious infraction.
Lesser included offense - Any infraction that must necessarily have been committed in order to commit another infraction.
Medical care - Any care conducted in a medical facility/treatment center by medical staff to treat a documented, physical injury, including, but not limited to bandaging, suturing, surgery, etc. An examination conducted by medical staff to determine whether an injury has been sustained shall not be considered medical care.
Mental health professional - An individual with a unique set of knowledge, skills and abilities that makes him/her competent in either development, research, administration, assessment, prevention, treatment, education or training aimed at effecting the onset, occurrence, and maintenance of mental, behavioral and in some cases physical health disorders.
Mitigating factors - Factors to be considered by the infracting officer in deciding whether to charge a #328 general infraction rather than a #728 serious infraction. Also, factors to be considered by the infraction review officer, hearings officer, and superintendent for the purpose of deciding whether a #728 serious infraction should be reduced to a #328 general infraction. Mitigating factors may include the seriousness of the sexually explicit material involved, whether the inmate has been convicted of a sexually motivated crime, the treatment needs of the inmate, the prior history of similar behavior, and the source of the material.
Possession - Established when an item(s) is found on a person or in an area which is under the control of the individual(s) charged.
Promptly - To act as soon as reasonably possible, consistent with institutional goals of safety, security, and rehabilitation.
Secretary - The secretary of the Washington state department of corrections, or the secretary's designee.
Sexual harassment - Any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.
Sexually explicit - Materials consist of any item displaying, portraying, depicting, or describing:
(a) Nudity, which includes exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, and/or female/transgender breast nipple(s);
(b) A sex act(s) which includes, but is not limited to, genital-genital, oral-genital, anal-genital, or oral-anal contact/penetration, genital or anal contact/penetration with an inanimate object, masturbation, sadistic/masochistic abuse, bondage, bestiality, and/or bodily excretory behavior which appears to be sexual in nature;
(c) A participant(s) who appears to be nonconsenting, dominated, degraded, humiliated, or in a submissive role, and/or acting in a forceful, threatening, dominating, or violent manner which appears to be sexual in nature; and/or
(d) Minor(s), or models depicting minors, in a sexually suggestive setting/pose/attire.
Staff member - For purposes of this chapter includes employees of the department of corrections, contract employees, and volunteers.
Superintendent - Superintendent of an adult correctional institution or the superintendent's designee.
Working days - Monday through Friday, excluding weekends and holidays.)) (1) Attempting – Putting forth an effort to commit any violation.
(2) Business days – Monday through Friday, excluding holidays and days the facility is experiencing altered/modified operational status.
(3) Conspiring – Entering into an agreement with another person(s) to commit a violation.
(4) Facility – A correctional facility as defined in RCW 72.09.015.
(5) Hearing officer – A trained staff member designated by the superintendent to conduct disciplinary hearings processes, as well as review appeals of general violations.
(6) Infraction – A term designating the procedures and documents related to offender misconduct and the facility disciplinary process.
(7) Infraction review officer – A trained staff member who assesses and evaluates the accuracy of the infraction packet, to include verification of the incident, appropriateness of the violation(s) charged, thoroughness of the information, and verification that supporting documents are included and that all evidence is collected and handled correctly (when applicable) before submittal to the hearing office.
(8) Lesser included offense – A less serious violation than the one charged, but one which the offender necessarily committed in carrying out the charged violation.
(9) Offender – An inmate as defined in RCW 72.09.015.
(10) Possessing – When an item(s) is found on an offender or in an offender's assigned area of responsibility.
(11) Promptly - To act as soon as reasonably possible, consistent with facility goals of safety, security, and rehabilitation.
(12) Staff member – A department of corrections employee, contract staff, or volunteer.
(13) Violation - The act of failing to comply with a rule enumerated in this chapter or chapter 137-25 WAC.
AMENDATORY SECTION (Amending WSR 00-10-079, filed 5/2/00, effective 6/2/00)
WAC 137-28-170 Supplementary rules.
(1) The superintendent may promulgate local supplementary rules, policies, and procedures, including the creation of new sanctions.
(2) All new or supplemental sanctions shall be approved in writing by the ((deputy)) assistant secretary before being put into effect.
AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-180 Notification.
(1) All ((inmates of an adult correctional institution)) offenders confined in a facility shall have access to policies and rules regarding:
(a) Their rights and responsibilities in disciplinary matters;
(b) Acts prohibited in the ((institution)) facility; and
(c) Disciplinary action that may be taken in the event of misconduct.
(2) All ((inmates)) offenders shall have access to a copy of the local disciplinary policies of the ((institution)) facility to which they are assigned.
(3) ((Inmates)) Offenders unable to read or understand English shall be provided access to a written or ((tape)) recorded translation of these rules in their accustomed language.
(4) ((Inmates)) Offenders should be provided access to changes to disciplinary policies or rules in advance of their effective date.
(a) ((Under normal circumstances, announcements of these changes should be posted at designated places for at least thirty days prior to their effective date or sent to the affected inmates.
(b))) Complete and up-to-date copies of these rules and all ((local)) facility disciplinary policies shall be available for offender access at each ((institution for inmate examination.
(c) Inmates shall be)) facility.
(b) Offenders are responsible ((to take steps necessary to inform)) for informing themselves of changes ((and posted updates.
(5) All infraction(s) should be heard at the facility where the infraction(s) occurred. If it is necessary to transfer an inmate to another facility prior to resolution of unheard infractions, his/her infraction(s) will be forwarded to the new facility for hearing)) to the rules and policies.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 98-04-086, filed 2/4/98, effective 3/7/98)
WAC 137-28-190 ((Reporting)) Referral to law enforcement ((authorities)).
(1) The superintendent ((shall)) should report any felony under state or federal law committed in a facility to law enforcement ((authorities.
(2) When)). Any time an offender ((knowingly)) commits ((an additional)) a serious ((infraction)) violation after losing all potential earned ((early)) release time credits, the superintendent ((will)) should report ((that)) the offender to local law enforcement ((authorities)) for possible felony prosecution under RCW 9.94.070.
(((3) If a violation has been reported to law enforcement authorities, inmates who have been charged with an infraction shall not be questioned about the incident outside of a formal disciplinary hearing or an administrative segregation hearing until after it has been determined that no prosecution will occur or until a finding of guilty is made.
(4) No provisions of these rules shall prevent the administrative segregation of any inmate.)) (2) The superintendent may report any misdemeanor under state or federal law committed in a facility to law enforcement.
(3) Nothing in this section shall prevent an offender's assignment to administrative segregation.
AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-200 Out-of-state ((inmates)) offenders.
(1) ((Inmates)) Offenders committed to the department of corrections who have been transferred to a prison in another state shall be subject to the disciplinary rules and procedures applicable to ((the prison to which they have been transferred)) that prison. That prison may, in its discretion, use any presumptive sanction guidelines currently in ((current)) effect in Washington state ((institutions)) facilities.
(2) ((Inmates)) Offenders committed ((from other jurisdictions)) to the ((control of the Washington)) department of corrections from other states shall be ((subjected)) subject to the disciplinary rules and procedures ((applicable to the)) currently in effect in the Washington state facility to which they are assigned. ((In addition:
(a) A summary of))
(3) Each state shall forward all serious infraction reports((, including sanctions, shall be forwarded)) and appeals to the originating ((jurisdiction.
(b) Loss of good time shall be handled in accordance with this policy. A copy of all infraction reports resulting in loss of good time shall be forwarded)) state within seven days of the final action, and may include a recommendation that the offender return to the originating ((jurisdiction by the institution record office with a request for approval. The loss of good time shall be considered pending until confirmed or modified by the originating jurisdiction)) state.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 06-24-087, filed 12/4/06, effective 1/4/07)
WAC 137-28-210 Hearing officers.
(1) Each hearing shall be conducted by a hearing officer(((s) within the rank/classification of lieutenant or above, or corrections specialist,)) designated by the superintendent.
(2) ((The hearing officer(s) will receive training in the disciplinary process and in the identification of inmates who may be impaired in their ability to understand the hearing process and participate in their own defense.
(3))) Hearing officers may not ((function in that capacity)) preside over a hearing when they are related to the offender, witness, victim, or infracting officer, or have direct personal involvement in the infraction under consideration. ((Such officers must disqualify themselves by giving notice to the superintendent, who will select a replacement.
(4) Direct)) For purposes of this section, direct personal involvement ((as that phrase is used in this section shall)) means knowledge or interest acquired through witnessing, investigating, or directly participating in the incident under consideration. This rule shall not preclude hearing officer participation where the hearing officer has acquired knowledge ((or interest indirectly or through review)) of the incident ((conducted)) as part of regular ((institutional)) facility responsibilities.
(((5))) (3) Hearing officers may disqualify themselves or may be disqualified by the superintendent if ((actually)) biased for or against any ((inmate)) offender so that they cannot render a fair ((judgment)) and impartial decision in the hearing.
(((6) Hearing officers must notify an infracted inmate if they are related to the infracting officer or the victim. The inmate may request another hearing officer or continue with the same hearing officer.))
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 06-21-054, filed 10/13/06, effective 11/13/06)
WAC 137-28-220 General ((infractions)) violations.
(1) Any of the following types of behavior may constitute a general ((infraction:)) violation. Attempting or conspiring to commit one of the following violations, or aiding and abetting another to commit one of the following violations, shall be considered the same as committing the violation.
(2) ((In determining whether a #328 infraction or a #728 infraction pursuant to WAC 137-25-030 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-28-160.)) If contraband or another violation is discovered in an offender's assigned area of responsibility, such as within the confines or contents of a cell, the contraband or other violation shall be constructively attributed (i.e., cell tagged) to all offenders assigned responsibility for that area.
AMENDATORY SECTION (Amending WSR 09-01-195, filed 12/24/08, effective 1/24/09)
WAC 137-28-230 General infraction procedure.
((Infraction report.)) (1) In the event of a general ((infraction)) violation, a staff member may make an on-site adjustment. An on-site adjustment may consist of ((counselling)) counseling, warning, or reprimanding the ((inmate)) offender and/or ((causing)) directing the ((inmate)) offender to remove ((him)) himself/herself from the situation immediately. An action addressed through an on-site adjustment ((under this rule)) cannot be considered a general ((infraction)) violation for the purposes of determining whether a #657 serious ((infraction)) violation has occurred.
(2) In the event of a general ((infraction)) violation where a staff member does not make an on-site adjustment, the staff member ((may)) will prepare and submit an infraction report per department policy. The ((infraction report shall include:
(a) Name, number and housing location of the offender;
(b) A description of the incident;
(c) The time and place of the incident;
(d) The names of witnesses, victims, and other persons involved;
(e) The specific rule(s) alleged to have been violated;
(f) A description of any action taken and)) staff member will attach copies of any ((relevant documentation or supplemental reports;
(g) Name and signature of reporting staff)) supporting documents.
(3) The general infraction report shall be promptly submitted ((promptly)) for review to the supervisor ((or unit team)) designated by the superintendent ((to receive such reports. The)). Upon review, if the supervisor ((or unit team may)) determines the action meets the criteria of a serious violation, he/she may return the report to the reporting staff member to upgrade the general ((infraction)) violation to a serious ((infraction)) violation. If the ((infraction)) violation is upgraded, the ((supervisor or unit team shall)) reporting staff member will forward the serious infraction report to the ((hearing clerk for preparation for a hearing on the serious)) infraction review officer.
(4) ((The supervisor or unit team receiving)) If the action was appropriately charged as a general ((infraction report shall)) violation, the supervisor will decide whether the ((inmate)) offender is guilty or not guilty within five ((working)) business days of ((receipt of)) receiving the report((.)), unless an extension ((to the five days may be granted)) is approved in writing by the ((disciplinary)) hearing officer. ((This decision of)) The supervisor ((or unit team can be reached by scheduling)) will conduct an informal hearing ((with the inmate present)) at which ((the supervising employee or unit team)) he/she may allow witnesses and documentary evidence((. Upon finding that an inmate is guilty, the supervising employee or unit team may impose any appropriate sanction)) with the offender present.
AMENDATORY SECTION (Amending WSR 02-12-023, filed 5/28/02, effective 6/28/02)
WAC 137-28-240 General ((infractions)) violations—Sanctions.
((For being found guilty of any general infraction, one or more of the following sanctions may be imposed:)) (1) If the supervisor finds the offender not guilty of a general violation, disciplinary sanctions shall not be imposed on the offender for that violation. Records pertaining to the violation shall not be placed in the offender's file, but may be retained for statistical, litigation, and recordkeeping purposes.
(2) If the supervisor finds the offender guilty of any general violation, the supervisor may impose one or more of the following sanctions:
(a) Reprimand or warning;
(((2))) (b) Issuance of a written order to cease ((a)) the problematic behavior. The order will include a warning that if the identified behavior is repeated within a specified period (not to exceed one hundred eighty days), the ((inmate)) offender will be charged with ((violation of)) a serious violation (((WAC 137-28-260) #658.
(3))) #658 under WAC 137-25-030);
(c) Loss of a privilege or privileges as specified by the supervisor ((or unit team)) for a period not ((more than)) to exceed ten consecutive days on ((a)) the first offense, twenty consecutive days on ((a)) the second offense, and thirty consecutive days on ((a)) the third offense within a six-month period;
(((4) Confinement to)) (d) Evening cell/room ((or cell)) confinement, except for attendance at work or school assignments, religious services, or meals, or law library if ((a documented court deadline has been imposed)) approved for emergency/priority access per department policy, not to exceed ten consecutive evenings;
(e) Weekend and/or holiday cell/room confinement, except for attendance at work or school assignments, religious services, or meals, or law library if approved for emergency/priority access per department policy, for a period of one or more weekends, not to exceed four consecutive weekends per incident. For purposes of this rule, a "weekend" shall begin at the end of the offender's programming or work day Friday and terminate at the beginning of the offender's programming or work day Monday;
(f) Confinement to cell/room except for attendance at work or school assignments, religious services, or meals, or law library if approved for emergency/priority access per department policy, for a period not to exceed ten consecutive days;
(((5))) (g) Up to one hundred twenty hours of extra work duty.
AMENDATORY SECTION (Amending WSR 06-21-054, filed 10/13/06, effective 11/13/06)
WAC 137-28-250 General infraction appeals.
(1) ((The sanctions for a finding of)) If the supervisor finds the offender guilty of a general ((infraction)) violation, only the offender may ((be appealed by)) appeal the ((inmate)) decision and/or sanction(s) to ((the major)) a hearing officer ((of the institution)).
(a) The appeal must be in writing and must include the reason(s) why the ((inmate)) offender believes the action taken was incorrect and specify the desired relief.
(b) The appeal must be delivered to the hearing officer within ((twenty-four hours after the inmate receives)) two business days of receiving the notice ((of the action taken)).
(c) Failure to follow appeal procedures ((will)) shall be deemed a waiver of the appeal, however the hearing officer may consider appeals filed beyond the two business day period.
(2) ((Within)) The hearing officer will review and act on the appeal request within ten ((working)) business days ((after)) of receipt ((of the appeal,)) unless ((the time)) an extension is ((extended)) approved in writing by the superintendent((,)). The hearing officer ((will decide either to:
(a) Schedule a hearing on)) may affirm the decision and sanction(s), affirm the ((appeal;)) decision and reduce the sanction(s), or (((b) Affirm,)) dismiss/modify downward((, or reverse the finding of guilty without a hearing)) the decision and sanction(s).
(3) Once a decision ((of the hearing officer)) is made((,)) on the ((inmate)) appeal, the offender shall be notified in writing within ((seventy-two hours)) three business days, unless ((the time period)) an extension is ((extended)) approved in writing by the superintendent.
(4) Sanctions ((are)) will not be stayed upon appeal.
AMENDATORY SECTION (Amending WSR 05-24-009 and 06-02-038, filed 11/28/05 and 12/28/05, effective 5/1/06)
WAC 137-28-260 Serious ((infractions)) violations.
See WAC 137-25-030 for the list of serious ((infractions)) violations.
AMENDATORY SECTION (Amending WSR 09-01-195, filed 12/24/08, effective 1/24/09)
WAC 137-28-270 Serious infraction procedure.
((Infraction report.
(1) In the event of a)) (1) When a staff member witnesses a serious violation or determines that a serious violation has occurred, he/she shall prepare and submit an infraction report per department policy. The staff member will attach to the report copies of any supporting documents, including a summary of any confidential information, which shall not identify the confidential source(s).
(2) The infraction review officer will review the serious infraction((, the staff member who discovers such violation shall prepare and submit an infraction report. The infraction report shall be submitted promptly upon discovery of the incident or upon completion of an investigation. The infraction report must include:
(a) Name, number and housing assignment of offender;
(b) A description of the incident;
(c) The time and place of the incident;
(d) The names of witnesses, victims, and other persons involved;
(e) The specific rule alleged to have been violated;
(f) A description of any action taken;
(g) A summary of any confidential information;
(h) Copies of any relevant documentation or supplemental reports. Confidential information and the identities of confidential informants shall not be included;
(i) Name and signature of reporting staff.
(2) The infracting staff member may recommend action to be taken on the infraction to the hearing officer. This may include a recommendation that the inmate be referred for a mental health consultation.
(3) Serious infraction reports may be reviewed by)) report and any supporting documents and/or evidence. If the report is incomplete or the charge(s) is inappropriate, the infraction review officer ((who may:
(a) Approve)) will return the report ((and forward it)) to the ((hearing clerk;
(b) Require the report)) reporting staff member to be revised, rewritten, or reinvestigated ((by the reporting staff member to ensure that the alleged facts support the charges;
(c) Add, dismiss, delete or reduce the indicated WAC violations as appropriate, based upon the information and/or evidence provided by the reporting staff member and any mitigating factors;
(d) Recommend)). Otherwise, the infraction review officer will forward the report to the hearing clerk or designee to schedule a hearing.
The infraction review officer may recommend referral to a mental health professional as defined in department policy for consultation if there is a question whether:
(((i))) (a) Mental illness contributed to the behavior that led to the ((infraction)) violation; or
(((ii))) (b) The ((inmate's)) offender's mental health status may need to be monitored.
(((4) If)) (3) A negotiated hearing process ((is in place in the facility, the report may)) will be used for any violation specifically identified in department policy. The serious infraction report will be forwarded to the designated hearing((s)) officer per department policy.
AMENDATORY SECTION (Amending WSR 09-01-195, filed 12/24/08, effective 1/24/09)
WAC 137-28-280 Temporary prehearing ((confinement)) placement.
(1) ((Before a hearing, an inmate)) An offender may be temporarily confined to his/her cell or ((demoted to a higher custody level or housing assignment)) placed in more restrictive housing, such as segregation, when it is reasonably believed that the ((inmate)) offender presents a ((risk to the)) security ((of the institution)) risk, a risk of escape, or a danger to ((themselves)) himself/herself or to others, or is in danger from others.
(2) ((Confinement decisions under this rule shall be made by the shift commander in writing. All)) Segregation placement decisions must be approved by the superintendent within ((one working day)) three business days of the confinement.
(((3) Confinement imposed under this section)) (a) Placement may not be for more than three ((working)) business days, unless either the ((inmate)) offender or the ((institution, for good cause,)) facility requires additional time to prepare for the disciplinary hearing, or there is an administrative segregation hearing.
(((4))) (b) If found guilty of the infraction and sanctioned to segregation, the offender shall receive credit against the sanction for time already served in segregation for that violation.
(3) An ((inmate)) offender confined ((under this section shall be subject to the same rules and restrictions as other inmates in the unit or status.
(5) An inmate confined under this rule)) to his/her cell or placed in more restrictive housing shall be afforded reasonable opportunities to prepare a defense to the charges against him/her.
(((6) An inmate confined on prehearing confinement or restricted under this rule by administrative segregation placement shall receive credit against the sanction for time served if found guilty of the infraction.
(7) If an inmate is on prehearing confinement and a sanction of further segregation or isolation is given and the inmate indicates he/she wishes to appeal, the inmate may remain on prehearing confinement status pending disposition of the appeal, unless released by the superintendent.))
NEW SECTION
WAC 137-28-285 Offender rights.
(1) An offender charged with a violation(s) has the right to:
(a) A fair and impartial hearing;
(b) Written notice of the alleged violation(s) and a summary of the supporting evidence at least twenty-four hours before the hearing;
(i) The notice shall include a statement of the rights listed in this section.
(ii) The offender may waive the twenty-four hour notice.
(c) Be present at the hearing or waive presence at the hearing;
(d) Request a department advisor and/or an interpreter to assist the offender in preparing for and participating in the hearing;
(e) Testify or remain silent;
(f) Call witnesses and present documentary evidence, though the hearing officer may exclude witnesses/evidence deemed irrelevant, duplicative, or unnecessary;
(g) Propose questions for the hearing officer to ask witnesses, although the hearing officer may exclude questions deemed irrelevant, duplicative, or unnecessary;
(h) Appeal the hearing officer's finding(s) and/or sanction(s) imposed to the superintendent within fifteen business days of the hearing officer's decision.
(2) Offenders do not have the right to:
(a) Cross-examine witnesses;
(b) Have the reporting staff member present at the hearing;
(c) Receive a polygraph or other supplemental tests;
(d) Examine physical evidence;
(e) Receive confidential information.
AMENDATORY SECTION (Amending WSR 00-10-079, filed 5/2/00, effective 6/2/00)
WAC 137-28-290 Preparations for hearing.
(1) When possible, hearings will be held in the facility where the violation(s) occurred. If the offender is transferred to another facility before a hearing is conducted, the sending facility will provide the infraction report, along with any supporting documents, to the receiving facility.
(2) In preparation for the hearing, the hearing clerk or designee shall, at least twenty-four hours ((in advance of)) before the hearing:
(((1))) (a) Provide copies of the infraction report ((to the inmate)) and nonconfidential supporting documents to the offender;
(((2))) (b) Advise the ((inmate)) offender in writing((:
(a) Of his/her right to have a hearing;
(b) That if he/she chooses not to testify at or attend the hearing, his/her silence may be used against him/her;
(c) To present written statements from other inmates, staff, or other persons only if those statements would be relevant to the infraction and have a tendency to demonstrate his/her innocence;
(d) To request that staff members, other inmates, and other persons be present as witnesses in his/her defense for the hearing if it is determined by the hearing officer that to do so would not be unduly hazardous to institutional safety or correctional goals. Limitations may be made by the hearing officer if the information to be presented by the witnesses is deemed to be irrelevant, duplicative, or unnecessary to the adequate presentation of the inmate's case;
(e) To have a staff advisor assist in preparation of the inmate's case when it is determined by appropriate staff that the inmate is unable to adequately represent him/herself on the basis of literacy, competence, or other disability;
(f) To have access to nonconfidential reports and records used by the hearing officer during the fact-finding stage. However, where reports and records contain information that might reasonably compromise the security or safety of the institution or its inmates, these reports and records shall be identified as confidential and withheld. A summary of the confidential information shall be provided to the inmate. This summary may be included in the infraction report.
(g) The inmate must establish that any requested witness has relevant and exculpatory evidence to present at the hearing. The inmate must list all intended witnesses on the notice of hearing. The hearing officer may, in his/her discretion, allow additional witnesses for good cause shown;
(3) Advise the inmate that he/she does not have a right:
(a) To cross-examine witnesses;
(b) To have the infracting staff member present at the hearing;
(c) To a polygraph or other supplemental tests;
(4))) of the rights, restrictions, and responsibilities listed in this section;
(c) Obtain written ((acknowledgement)) acknowledgment of the ((inmate's)) offender's receipt of the ((information;
(5))) infraction report and any supporting documents;
(d) Determine ((from the inmate)) whether the ((inmate)) offender wishes to contest the allegation;
(((6) Schedule the hearing within seven working days after discovery of the incident. If an inmate)) (e) Determine whether the offender needs a department advisor and/or an interpreter. If assigned, the department advisor and/or interpreter will remain in place throughout the hearing process, unless the offender declines assistance.
(3) If an offender is placed in prehearing confinement((, a)) in segregation, the hearing ((shall)) will be held within three ((working days after the day of placement)) business days of service of the infraction report and any supporting documents, unless the ((time is extended by the superintendent. If)) offender has waived twenty-four hour notice for the hearing or the hearing is continued in writing by the hearing officer. A staff member may be assigned to assist in obtaining witness statements.
If a hearing is continued, a determination shall be made in writing whether the ((inmate)) offender should remain ((on prehearing confinement and the reasons for that confinement)) in segregation.
(4) For offenders not placed in segregation, the hearing will be held within five business days of service of the infraction report and any supporting documents.
NEW SECTION
WAC 137-28-295 Department advisors.
(1) A department advisor may be appointed per department policy to help the offender prepare for and participate in the hearing. Before a department advisor is assigned, the following factors will be considered:
(a) The offender's literacy;
(b) The complexity of the issue(s);
(c) The offender's overall ability to speak for himself/herself and adequately present his/her case;
(d) The offender's ability to communicate in English;
(e) Any disability that might impair the offender's ability to adequately defend himself/herself.
(2) The department advisor will be a staff member who is not involved in the observation or investigation of the infraction.
(3) The department advisor shall attend the hearing, in whole or in part, based on the offender's needs. He/she may attend in person or by telephone. He/she shall not present the offender's case, question witnesses, or make any other oral presentation, unless requested by the hearing officer.
(4) When a hearing is continued for the purpose of appointing a department advisor, an advisor shall be appointed immediately.
(5) Conversations between department advisors and offenders are neither confidential nor privileged.
AMENDATORY SECTION (Amending WSR 00-10-079, filed 5/2/00, effective 6/2/00)
WAC 137-28-300 Conduct of hearing.
(1) The hearing officer shall ensure that the ((inmate)) offender's rights are protected throughout the hearing. The hearing officer shall ensure that the offender is capable of understanding the charge against him/her((,)) and the nature of the proceedings, and is able to adequately ((take part)) participate in the hearing. If there is reason to doubt the ((inmate's)) offender's understanding or ability, the hearing officer may order a continuance of the hearing in order to obtain additional information((, refer the inmate to a mental health staff member for assessment, appoint a mental health staff member to represent the inmate at the hearing, or request a staff advisor)).
(2) The ((inmate)) offender shall be present at all stages of the hearing, except during deliberations, examination of any physical evidence and/or confidential information, and any inquiry the hearing officer may make concerning the evidence/information presented, including the source(s) of confidential information.
(((3) The hearing officer may consider relevant evidence presented)) (a) If new evidence/information is introduced outside the hearing ((when not feasible to present that evidence within the hearing. The inmate shall be apprised of the content of that evidence and shall be allowed)), the offender will have an opportunity to rebut ((that)) the evidence/information during the hearing. ((An inmate may waive his/her presence at a hearing. Failure without good cause))
(b) Unless excused, an offender's failure to attend a scheduled hearing ((may be deemed a waiver of personal attendance. An inmate may be removed from his/her disciplinary hearing and the hearing may be continued in the inmate's absence if the inmate's behavior disrupts the disciplinary hearing.
(4) Where institution staff members are witnesses against the inmate, a written statement from the staff member may)) will be considered ((by the)) his/her waiver of the right to be present at the hearing.
(3) An audio recording will be made of all hearings. A written record will also be made of all hearings.
(a) The record shall include:
(i) The name and DOC number of the offender;
(ii) The date, location, and time of the hearing;
(iii) The name of the hearing officer;
(iv) The alleged violation(s);
(v) The offender's plea(s) to the alleged violation(s);
(vi) The names of witnesses;
(vii) A summary of the statements of the offender and any witnesses, and information from any additional sources, including confidential sources;
(viii) A summary of any new evidence/information introduced outside the hearing;
(ix) A description of any physical evidence;
(x) The reasons for denying any witnesses;
(xi) Any witness statements requested by the offender or hearing officer ((instead of in-person testimony, except where)) that were not provided or were unavailable, if applicable;
(xii) Any witness questions proposed by the offender that the hearing officer did not ask and the reason(s) the questions were excluded (i.e., irrelevant, duplicative, or unnecessary);
(xiii) The hearing officer's decision, the sanction(s) imposed, and reasons.
(b) If the offender is found guilty, the hearing officer will ensure all related reports, recordings, and attachments become part of the offender's file.
(4) The hearing officer will ensure physical evidence is handled per department policy.
(5) If an offender's behavior disrupts the hearing, he/she may be removed and the hearing will continue on the record in the offender's absence.
(6) If the hearing officer determines that a witness's presence is necessary, the witness may participate by telephone or in person, at the hearing officer's discretion. If the hearing officer determines that ((the staff member's presence is necessary to an adequate understanding of the issues in the case.
(5))) participation would be unduly hazardous to facility safety or correctional goals, the witness will provide a written statement.
(7) The hearing officer has the authority to question all witnesses. The ((inmate)) offender may submit proposed questions to be asked of witnesses, but the hearing officer ((has discretion over the)) may exclude questions ((asked.
(6) The inmate shall be allowed to present witnesses in his/her defense and to present documentary evidence in his/her defense when permitting him/her to do so will not be unduly hazardous to institutional safety or correctional goals. Testimony of witnesses from outside the facility will be submitted in writing.
(a) The hearing officer may deny the admission of evidence or testimony if the hearing officer determines that the testimony or evidence is)) that are irrelevant, ((immaterial, unnecessarily)) duplicative ((of other information before the hearing officer, or otherwise found to be)), or unnecessary to the adequate presentation of the ((inmate's)) offender's case.
(((b) The testimony of witnesses that is adverse to the inmate may be given in person, in writing, or by telephone.
(c) The hearing officer shall document on the written record the reasons for denial of in-person testimony that is requested in writing by the inmate.
(7) If the hearing officer determines that a source of information would be subject to risk of harm if his/her identity were disclosed, testimony of the)) (8) Information from a confidential source ((may)) will be introduced by the testimony of ((a)) the staff member. ((The confidential testimony may be provided by the source or by the written and signed statement of the source. If the staff member to whom the source provided information is unavailable, the written statement of this staff member may be used)) who received the information.
(a) The hearing officer shall, out of the presence of ((all inmates)) the offender and off the record, ((identify the confidential source, and how the testifying staff member received)) review the confidential information((.
(b) The staff member presenting the information from a confidential source shall identify the source and the circumstances surrounding the receipt of the confidential information to the hearing officer, off the record. The hearing officer shall)) and make an independent determination regarding the reliability of the ((confidential)) source, the credibility of the information, and the necessity of not revealing the source ((of the confidential information)). In determining whether the ((confidential)) source is reliable and the ((confidential)) information is credible, the hearing officer should consider all relevant circumstances including, but not limited to:
(i) Evidence from other staff members that the confidential source has previously given reliable information;
(ii) Evidence that the confidential source had no apparent motive to fabricate information;
(iii) Evidence that the confidential source received no benefit from providing the information;
(iv) Whether the confidential source is giving first-hand information;
(v) Whether the confidential information is internally consistent and is consistent with other known facts; and
(vi) The existence of corroborating evidence.
(b) The hearing officer shall also determine whether safety concerns justify nondisclosure of the source of confidential information.
(c) The reliability and credibility determination and the need for confidentiality must be made on the record.
NEW SECTION
WAC 137-28-305 Continuances.
(1) At any time during the disciplinary process, the hearing officer may continue the hearing:
(a) To appoint a department advisor;
(b) To obtain an interpreter;
(c) To obtain a witness(es) or witness statement(s);
(d) To obtain a replacement hearing officer;
(e) If the witness(es) is temporarily unavailable;
(f) If the offender is unavailable (e.g., on escape, court-ordered custody, in transit to a nondepartment facility, etc.);
(g) At the reasonable request of the offender;
(h) If the facility is experiencing altered/modified operational status;
(i) To determine restitution costs.
(2) Continuances shall be for no longer than necessary, and shall not exceed twenty business days, unless approved by the superintendent.
(3) Hearings for offenders on escape status, in court-ordered custody, in transit to a facility in another jurisdiction, or otherwise unavailable may be continued for not more than twenty business days after their return to department custody.
AMENDATORY SECTION (Amending WSR 06-21-054, filed 10/13/06, effective 11/13/06)
WAC 137-28-310 Decision of hearing officer.
(1) ((A report of the hearing shall be made.
(a) The report shall include:
(i) The charge;
(ii) Names of witnesses;
(iii) Inmate plea(s);
(iv) Summary of the testimony and cross-examination;
(v) A description of the physical evidence used;
(vi) Reasons for denying witnesses or the fact that written witness statements were not returned to the hearing officer; and
(vii) The decisions and reasons.
(b) The written report shall be placed in the inmate's institutional file if he/she is found guilty.
(c) All reports and attachments shall be maintained by the clerk as part of the hearing officer's permanent records. A complete taped record of the hearing shall be taken but the tape shall not become a part of the inmate's file, and may be destroyed in accordance with the department's archive retention schedule unless the hearing officer becomes aware that an appeal or court proceeding is pending.
(2))) In reaching a decision ((on the guilt or innocence of the inmate)), the hearing officer ((must rely solely on evidence considered)) will consider only the evidence presented at the hearing((. However, during the dispositional stage of the hearing, other factors, such as the inmate's institutional file, prior conduct, mental status, and overall institution adjustment, may be considered.
(3) The hearing officer may not find an inmate guilty of committing a #328 or #728 infraction if the inmate possesses sexually explicit materials depicting only actual penetration and such sexually explicit material was screened and approved by a mail room staff member prior to delivery to the inmate. Nothing herein shall be construed to limit the ability to remove such material from the inmate's possession and cell.
(4) The hearing officer shall consider mitigating factors in determining whether to reduce a #728 serious infraction to a #328 general infraction)).
(((5))) (2) The hearing officer is authorized to find an inmate guilty of a lesser included offense without issuing a new infraction report or conducting a new hearing.
(((6))) (3) Where the evidence suggests an inmate is guilty of an offense not charged and which is not a lesser included offense to a charged offense, the hearing officer may recommend that new charges be filed to address such offenses. The inmate may waive the right to a separate hearing ((on the new charges and may allow the hearing officer to enter a finding of guilty or not guilty and impose sanctions.
(7) The inmate)) and allow the hearing officer to conduct the hearing on the new charge.
(4) The offender shall be informed of the hearing officer's decision ((of the hearing officer)) in writing within three ((working)) business days of the hearing, unless extended by the superintendent.
(((8) The inmate)) (5) The offender shall be informed of his/her right to appeal the hearing officer's decision ((of the hearing officer)) to the superintendent.
AMENDATORY SECTION (Amending WSR 09-01-195, filed 12/24/08, effective 1/24/09)
WAC 137-28-350 Sanctions—Authority to impose.
(1) If the hearing officer finds the offender not guilty of a violation, disciplinary sanctions shall not be imposed on the offender for that violation. Records pertaining to the violation shall not be placed in the offender's file, but may be retained for statistical, litigation, and recordkeeping purposes.
(2) If the hearing officer ((determines that an inmate is)) finds the offender guilty of a serious ((infraction, he/she)) violation, the hearing officer may impose one or more of the ((following)) sanctions listed in this section.
If the hearing officer determines that more than one violation occurred as a result of the same incident, he/she shall not impose sanctions for the separate violations, but shall consider them together and impose penalties based on the most serious violation in the group.
(3) Allowable sanctions for serious violations are as follows. The hearing officer may consider factors such as prior documented behavior, infraction history, mental status, and overall facility and program adjustment when determining an appropriate sanction(s):
(a) Any of the sanctions available for general ((infractions)) violations;
(b) Any of the sanctions available under ((DOC 320.150)) department policy;
(c) Loss of a privilege or privileges as ((specified by the hearing officer)) outlined in department policy for a period not to exceed: Thirty consecutive days on ((a)) the first offense, ninety consecutive days on ((a)) the second offense, and one hundred eighty consecutive days on ((a)) the third offense((,)) within a one-year period;
(d) ((Evening lockup or confinement to quarters for ten days;
(e) Weekend and/or holiday lockup or confinement to quarters for a period of one or more weekends but not to exceed twelve consecutive weekends per incident. For purposes of this rule, a "weekend" shall begin at the end of the Friday workday and terminate at the beginning of the Monday workday;
(f))) Confinement to ((quarters)) cell/room except for meals((,)) (or with meals in cell((, with or without curtailment of job assignment))), attendance at work or school assignments, or religious services, or law library if approved for emergency/priority access per department policy, for a period not to exceed thirty consecutive days;
(((g))) (e) Recommendation to the ((unit team/classification committee/assignment officer for reconsideration)) facility risk management team for review of custody classification ((or program change;
(h) Recommendations to the classification committee/classification officer for transfer to another institution when, as a result of the infraction committed, the inmate is unable to function in the institution of present confinement, or if other disciplinary methods have been attempted and failed));
(((i))) (f) Confinement on segregation status for a period not to exceed thirty consecutive days;
(((j) Confinement)) (g) With assistant secretary approval, confinement on isolation status for a period not to exceed ten consecutive days((; however, where)). Where a serious ((infraction)) violation occurs during a period of isolation ((imposed under this rule)), additional periods of isolation not to exceed ten consecutive days may be imposed. In situations where an ((inmate)) offender is in isolation for more than ten consecutive days, the ((director's)) assistant secretary's prior approval is required unless the ((inmate)) offender is released from isolation for at least seventy-two consecutive hours between the end of one isolation sanction and the beginning of another;
(((k))) (h) Restitution per WAC 137-28-410;
(((l))) (i) Recommendation to the superintendent that he/she ((not certify)) deny good conduct time credit ((for an inmate subject to the jurisdiction of the indeterminate sentence review board, pursuant to RCW 9.95.070 or that he/she approve the denial of good conduct time credit for those inmates not under the jurisdiction of the board)).
(((i))) The recommendation will be consistent with guidelines established by the ((secretary of the)) department ((of corrections.
(ii))) secretary. Any sanctions ((for loss of good conduct credits)) in excess of the guidelines ((established by the secretary of the department of corrections must have final approval by the deputy secretary.
(iii) For inmates not under the board's jurisdiction, all awards of good conduct time shall be considered tentative and therefore all good conduct time credits earned or to be earned may be addressed under this rule;
(m) Recommendation to the indeterminate sentence review board for a disciplinary hearing or reconsideration of minimum term should occur only with infractions providing for actual time loss of twelve months or more and consistent with guidelines established by the department;
(n) Interruption of visitation between the offender and a specified individual(s) for a period of up to one hundred eighty consecutive days when there has been an infraction for visit related behavior or behavior that presents a security or safety threat. In cases of multiple or very serious offenses, recommendations may be made to the superintendent for extended or permanent loss of the privilege of visitation with a specified individual(s);
(o) Restrictions, interruption or termination of correspondence, and/or telephone privileges with specified individuals. Sanctions for offense(s) within any one-year period may not exceed: Up to)) require assistant secretary approval;
(j) Suspension or termination of visitation, for certain violations as outlined in department policy, for a period not to exceed: Thirty consecutive days for the first offense, ninety consecutive days for the ((first)) second offense, and one hundred eighty consecutive days for the ((second offense and permanent loss for the)) third offense((. Termination of correspondence and/or telephone privileges may be permanent for the first offense if:
(i) The recipient so requests; or)) within a one-year period;
(k) Restriction, interruption, or termination of correspondence, telephone, and/or electronic communication for a period not to exceed: Thirty consecutive days for the first offense, ninety consecutive days for the second offense, and one hundred eighty consecutive days for the third offense in a one-year period. Termination of correspondence, telephone, and/or electronic communication may be permanent:
(i) At the recipient's request;
(ii) ((A)) At the request of the parent or guardian of the recipient, if the recipient is a minor or an ((incompetent)) incapacitated person((, so requests; or));
(iii) ((A felony was involved in the incident;)) If correspondence perpetuates criminal activity; or
(iv) If the contact violates a court order((;
(p) The sanction for infraction #557 and #810 shall be the loss of available earned release credits and other privileges as outlined in department policy. Progressively more severe sanctions will be utilized for subsequent infractions #557 and #810.
(q) The sanction for infraction #882 shall include a mandatory loss of telephone privileges, with the exception of legal calls, for sixty consecutive days for the first offense, ninety consecutive days for the second offense and one hundred eighty consecutive days for a third or subsequent offense within any one-year period.
(2) If the hearing officer determines that more than one infraction occurred as a result of the same incident, he/she shall not impose consecutive sanctions for the separate infractions but shall consider them together and impose penalties for the group of infractions.
(3) The hearing officer may suspend the execution of a disciplinary sanction for a fixed period of time, not to exceed three hundred sixty-five consecutive days, subject to the good behavior of the inmate or to meeting other conditions as specified by the hearing officer. If the subsequent behavior of the inmate is appropriate, the hearing officer may, at or before the end of the fixed period, cancel the sanction. A suspended sanction may be imposed if the inmate has been found guilty of a general or serious infraction or of violating the conditions attached to the original suspension. A suspended sanction may be imposed by the hearing officer following notice to, and an in-person meeting with, the inmate)).
(l) Urinalysis or breath alcohol testing for a period not to exceed ninety days for drug or alcohol related violations.
(4) The hearing officer may review any decision he/she previously made and may modify downward any sanction previously imposed.
(5) In all cases, regardless of whether an appeal is ((taken)) requested, the superintendent may review and reduce a sanction imposed ((and may reduce its severity)). Once the superintendent has made a decision on the appeal, no modifications will be made by the hearing officer.
(6) Nothing in this section limits the superintendent's discretion to grant, deny, suspend, or revoke any privilege.
AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-360 Sanctions and mental status.
In determining an appropriate sanction, the hearing officer should consider the ((inmate's)) offender's mental health and his/her intellectual, emotional, and maturity levels and what effect a particular sanction might have on the ((inmate)) offender in light of such factors. The hearing officer may request the assistance of other department staff members, including mental health staff members, in determining appropriate sanctions.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-370 Sanctions—Limitations.
(((1) No inmate shall be subject to discipline for violation of inmate conduct rules unless there has been reasonable advance notice to the inmate of the prohibited behavior unless the rule was adopted on an emergency basis.
(2) Lowering the quantity or nutritional value of food or deprivation of clothing, bedding, bed, or normal hygienic implements shall not be used as disciplinary sanctions.
(3) Corporal punishment or physical restraint shall not be used as disciplinary sanctions.
(4) An inmate placed in disciplinary segregation shall be:
(a) Confined to an environment with healthful temperatures in cells substantially similar to those used for general population;
(b) Provided reasonable opportunities for personal hygiene;
(c) Afforded correspondence, reading, and access to the courts in accordance with written policy and procedure;
(d) Provided daily opportunity for at least one hour of exercise unless staffing, space, institutional security, order and/or safety, or other similar circumstances make this unfeasible, in which cases the inmate shall be allowed as much exercise as is feasible in the judgment of staff. Any limitations of exercise shall be approved in advance by a staff member with the rank of lieutenant or higher; and
(e) Provided adequate medical treatment.
(5) An inmate placed in isolation shall be:
(a) Confined in an environment with healthful temperatures in cells substantially similar to those used for the general population;
(b) Provided reasonable opportunities for personal hygiene;
(c) Afforded correspondence, reading, and access to courts in accordance with written policy and procedure. Reading literature may be limited to educational, religious, legal, or program involvement material;
(d) Provided adequate medical treatment;
(e) Upon approval by the superintendent, released immediately to an appropriate setting when medical personnel recommend such release on medical or psychological grounds; and
(f) Have reasonable access to a counselor and religious staff member.)) (1) No offender shall be infracted for violation of offender conduct rules unless he/she has been provided reasonable advance notice of the prohibited behavior, unless the rule was adopted on an emergency basis.
(2) Disciplinary sanctions shall not include:
(a) Lowering the quantity or nutritional value of food;
(b) Corporal punishment or physical restraint;
(c) Confinement to an environment with unhealthful temperatures;
(d) Denial of adequate medical treatment.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 06-21-054, filed 10/13/06, effective 11/13/06)
WAC 137-28-380 ((Appeal to superintendent)) Serious infraction appeals.
(1) ((An inmate or the inmate's staff advisor)) If the hearing officer finds the offender guilty of a serious violation, only the offender may appeal the decision ((of the hearing officer)) and/or sanction(s) to the superintendent ((by filing a written)).
(a) An appeal request ((for review with his/her reasons with the clerk)) cannot be filed when the offender has pled guilty to the violation.
(b) The appeal request must be in writing and must include the reason(s) why the offender believes the action taken was incorrect and specify the desired relief.
(c) The appeal request must be filed within fifteen business days((, exclusive of weekends and holidays, after)) of receiving the notice.
(d) Failure to follow appeal procedures shall be deemed a waiver of the ((decision of the hearing officer. The)) appeal, however the superintendent may consider appeals filed beyond the fifteen((-)) business day period.
(2) The ((clerk shall promptly transmit the appeal and)) superintendent will review the hearing record ((to the superintendent.
(3) The superintendent shall)) and act on the appeal request within ten ((working)) business days of ((its)) receipt. The superintendent may affirm the decision ((of the hearing officer; reduce the charge to a lesser included offense; reduce a #728 serious infraction to a #328 general infraction based upon mitigating factors; reduce the severity of the sanctions imposed; vacate the judgment of the hearing officer; or)) and sanction(s), affirm the decision and reduce the sanction(s), or dismiss/modify downward the decision and sanction(s). The superintendent may also reverse the decision and remand the matter for a new hearing((. Any)), in which case the sanction(s) imposed at the new hearing may not ((result in an increase in the severity of the sanctions)) be more severe than the sanction(s) originally imposed ((unless the inmate is charged with related or additional offenses)).
(((4))) (3) The ((inmate)) offender shall be promptly notified ((promptly)) in writing of the superintendent's decision ((of the superintendent)).
(((5))) (4) Sanctions ((are)) will not be stayed upon appeal.
AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-390 Hearing officer reports to the indeterminate sentence review board.
(1) When the hearing officer determines that an offender subject to the jurisdiction of the indeterminate sentence review board is guilty of a serious violation, the hearing officer may recommend to the superintendent that he/she not certify good conduct time credit for the offender pursuant to RCW 9.95.070.
The hearing officer's recommendation will be consistent with guidelines established by the department secretary. Any sanctions for loss of good conduct credits in excess of the guidelines require assistant secretary approval.
(2) Recommendation to the indeterminate sentence review board for a disciplinary hearing or reconsideration of minimum term should occur only with violations providing for actual time loss of twelve months or more and consistent with guidelines established by the department secretary.
(3) Whenever the hearing officer finds an ((inmate)) offender under the jurisdiction of the indeterminate sentence review board guilty of a serious ((infraction)) violation and recommends either loss of good conduct time credits or an increase in the ((inmate's)) offender's minimum term, the records office must inform the indeterminate sentence review board of ((that)) the hearing officer's decision and recommendation within ten days, or((, if an appeal is taken,)) within ten days of the superintendent's decision if an appeal is granted. This report shall include a copy of the summary of the hearing prepared by the hearing officer. If the offender is within forty−five days of an apparent release date, the indeterminate sentence review board shall be notified promptly with written notification to follow.
(((2))) (4) In all other cases where ((a finding of guilty is made for)) an offender under the jurisdiction of the indeterminate sentence review board is found guilty of a serious ((infraction)) violation, the records office must inform the indeterminate sentence review board of ((that)) the hearing officer's decision within thirty days, or ((if an appeal is taken,)) within thirty days of the superintendent's decision if an appeal is granted. This report shall include a copy of the summary of the hearing prepared by the hearing officer ((reporter.
(3) Where an inmate is found guilty of a serious infraction)). If the offender is within forty-five days of an apparent release date, the indeterminate sentence review board shall be notified promptly with written notification to follow.
(((4) This section shall apply only to inmates who are under the jurisdiction of the indeterminate sentence review board.))
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)
WAC 137-28-410 Restitution.
(1) If the hearing officer imposes restitution ((has been imposed)) as a sanction, ((a hearing officer shall determine the amount of restitution owed. A determination of)) the amount of restitution owed shall be ((made)) determined at the infraction hearing. However, the hearing officer may continue the hearing in order to secure additional evidence regarding restitution. If continued, the ((inmate)) offender shall be present at the continued/reconvened hearing.
(2) The amount of restitution ((normally shall)) will be the replacement value of the item, the cost of repair, and/or the cost of any unnecessary expense caused by the ((inmate's)) offender's misconduct.
(3) The ((inmate shall be given an opportunity to)) offender may appeal the amount of restitution within the time limits of this ((policy)) chapter. If under appeal, the amount of the restitution will be held in the ((inmate's)) offender's account, but funds will not be ((withdrawn from the inmate's account)) withdrawn/withheld until the superintendent has decided the appeal.
(4) Restitution funds may be collected in the following ways:
(a) The funds may be((:
(a))) withdrawn from the ((inmate's)) offender's account to make restitution, provided the ((inmate's)) offender's account ((shall)) is not ((be)) reduced to less than ten dollars; or
(b) Twenty percent of all funds being placed ((into)) in the ((inmate's)) offender's account may be taken until the restitution is paid in full.
Reviser's note: Under RCW 34.05.030 (1)(c), as amended by section 103, chapter 288, Laws of 1988, the above section was not adopted under the Administrative Procedure Act, chapter 34.05 RCW, but was published in the Washington State Register and codified into the Washington Administrative Code exactly as shown by the agency filing with history notes added by the code reviser's office. REPEALER
The following sections of the Washington Administrative Code are repealed:
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