WSR 15-18-003 PROPOSED RULES DEPARTMENT OF CORRECTIONS [Filed August 19, 2015, 2:34 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-13-073.
Title of Rule and Other Identifying Information: Amendments to chapter 137-104 WAC, Community custody violation hearings.
Hearing Location(s): Edna Lucille Goodrich (ELG) Building, 7345 Linderson Way S.W., Room 1034, Tumwater, WA 98501, on October 6, 2015, at 1:30 p.m.
Date of Intended Adoption: October 7, 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 October 1, 2015.
Assistance for Persons with Disabilities: Contact John Nispel by October 1, 2015, (360) 725-8365.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Ensure that the rules are fair and balanced and consistent with desired hearing practices.
Reasons Supporting Proposal: References to the department of corrections (DOC) policy should be accurate.
Statute Being Implemented: RCW 9.94A.737.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DOC, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Dominga Soliz, headquarters, (360) 725-8586.
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.
August 19, 2015
Bernard Warner
Secretary
Chapter 137-104 WAC
COMMUNITY CUSTODY VIOLATION ((HEARINGS)) RESPONSE PROCESSES AMENDATORY SECTION (Amending WSR 01-04-044, filed 2/1/01, effective 3/1/01)
WAC 137-104-010 Purpose.
The purpose of this chapter is to specify policies and procedures pertaining to ((the)) Washington state department of corrections' community custody violation ((hearings)) response processes. The following regulations set forth procedural guidelines. They do not create procedural or substantive rights in any person and should not be interpreted or applied in such a manner as to abridge rights already guaranteed by the United States Constitution. The regulations should be interpreted as having sufficient flexibility to be consistent with law and permit the department to accomplish its statutory purposes.
AMENDATORY SECTION (Amending WSR 07-08-082, filed 4/2/07, effective 5/3/07)
WAC 137-104-020 Definitions.
For purposes of this chapter, the following words have the following meanings:
(1) "Aggravating factors" are existing circumstances that will initiate a hearing for a low level violation.
(2) "Appeal((s)) panel" means three reviewing ((officers)) staff designated by the secretary with the authority to review ((hearing officers' decisions, and to affirm, reverse, or modify decisions and sanctions in accordance with RCW 9.94A.737.
(2) "Community corrections officer" means an employee of the department responsible for carrying out specific duties concerning the supervision of sentenced offenders and monitoring of sentence conditions.
(3) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time served in the community subject to controls placed on the offender's movement and activities by the department. Offenders supervised on community custody include those subject to community placement (as defined in RCW 9.94A.030), drug offender sentencing alternative (as described in RCW 9.94A.505), community custody for a sex offense (as described in RCW 9.94A.505), community custody max, first-time offender waiver (as described in RCW 9.94A.505), or a work ethic camp program (as defined in RCW 9.94A.030), and those sentenced to community custody by the court for crimes committed on or after July 1, 2000, whose sentence is less than one year of confinement. For purposes of this subsection, "community custody max" means a term of community custody for certain sex offenders who have completed their maximum sentences of confinement.
(4) "Department" means the Washington state department of corrections.
(5) "Deputy secretary" means the deputy secretary of the prisons division of the department, or the deputy secretary's designee.
(6) "Graduated sanction system" means structured incremental responses designed to reduce risk to the public, effectively intervene in noncompliant behavior, where possible, repair harm to the community, and make efficient use of limited state resources. Sanctions may include, but are not limited to, partial or total confinement; home detention with electronic monitoring; work crew; community service; inpatient treatment; daily reporting; curfew; educational or counseling sessions; supervisions enhanced through electronic monitoring; or any other sanctions available in the community.
(7))) offender appeals of department-imposed sanctions. An appeal panel shall affirm, reverse and vacate, modify, or remand, based on its findings in accordance with RCW 9.94A.737.
(3) "Ex parte communication" means any predisposition communication between the hearing officer and a party or other individual on behalf of that party regarding the department hearing and the merits of the matter without notice and opportunity for all parties to participate.
(4) "Hearing officer" means an employee of the department authorized to conduct department disciplinary hearings.
(((8))) (5) "Hearings ((program manager)) administrator" means the ((manager)) administrator of the hearings unit of the department, or the hearings ((program manager's)) administrator's designee.
(((9) "Offender" means any person in the custody of or subject to the jurisdiction of the department.
(10) "Partial confinement" means confinement in a facility or institution operated or utilized under contract by the state or by any other unit of government, to include, but not be limited to, work release, treatment center, residential facility, or home detention with electronic monitoring.
(11) "Probable cause" means a determination, made by a hearing officer, that there is cause to believe a violation has occurred.
(12) "Secretary" means the secretary of the department, or the secretary's designee.
(13) "Stipulated agreement" means an agreement between the offender and the department in which the offender admits violations and agrees to comply with intermediate sanctions. For the purposes of this subsection, "intermediate sanction" means department-imposed sanctions that are served in the community rather than total confinement.
(14) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, to include, but not be limited to, adult correctional facilities, camp and prerelease facilities or a county or municipal jail.
(15) "Working day" means Monday through Friday, 8:00 a.m. to 5:00 p.m., Pacific Time, except for holidays observed by the state of Washington.)) (6) "High level violations" are violations that are not considered low level violations as defined by department policy.
(7) "Preponderance of the evidence" means the weight of the evidence presented by one party is more convincing than the weight of the evidence presented by the opposing party.
(8) "Violation" means willful noncompliance with a court-ordered or department-imposed condition, requirement, or instruction.
(9) "Violation process" means the adjudication by a court or the department of one or more alleged violations in which the offender has been found to have committed the violation(s).
NEW SECTION
WAC 137-104-025 Sanctions for offender violations.
(1) The state and its officers, agents, and employees may not be held criminally or civilly liable for a decision to elevate or not to elevate an offender's behavior to a high level violation process in accordance with RCW 9.94A.737.
(2) When addressing violation behavior, the department will ensure that:
(a) The department has jurisdiction to sanction the offender;
(b) The alleged violation was willful; and
(c) The offender is provided the opportunity to respond to the alleged violation.
(3) An offender who violates any condition or requirement may be sanctioned by the department as provided in RCW 9.94A.737.
(a) The department may impose nonconfinement sanctions.
(b) The offender may be held in total or partial confinement to address a low level violation as determined by department policy resulting in a short-term sanction of not more than three days.
(c) The offender may be held in total or partial confinement pending a sanction hearing to address a high level violation as determined by department policy for not more than thirty days per violation process, unless subject to return under RCW 9.94A.633 or revocation of an alternative sentence. The department will credit an offender's sanction time with prehearing confinement.
(4) The offender's violation behavior shall determine the sanction the department imposes. The department's structured violation response process will be defined by department policy.
AMENDATORY SECTION (Amending WSR 01-04-044, filed 2/1/01, effective 3/1/01)
WAC 137-104-040 Notice ((and service)).
(((1) When placed on community custody, offenders shall be provided with written notice of all court and department-imposed conditions and/or requirements.
(2) If an offender is being held in total confinement prior to the hearing for allegedly violating conditions and/or requirements of community custody, the department shall, within three working days of a probable cause determination by the hearings unit, serve the notice of allegations, hearing and rights, and waiver form.
(a) Within three working days of the service of the notice of allegations, hearing and rights, and waiver form, the community corrections officer shall submit to the hearing officer and the offender, a report of alleged violations which shall contain the following: Alleged violations, a summary of facts supporting the allegations, and all other supporting documentary evidence relating to the violations to be introduced at the hearing. The report shall also contain a preliminary recommendation for disposition.
(b) Reports of alleged violations may be submitted electronically.
(3) The factual allegations may be amended and/or new allegations added at any time prior to the hearing, provided, the offender receives written notice of such new and/or amended allegations and all other supporting documentary evidence at least twenty-four hours prior to the hearing. The offender may waive the right to such notice at the hearing.
(4) Offenders who have allegedly violated conditions and/or requirements of community custody, but are not detained, shall be served with the notice of allegations, hearing and rights, and waiver form within thirty days of the community corrections officer becoming aware of the alleged violation behavior.
(a) A report of alleged violations and all other supporting documentary evidence shall be provided to the offender at least seven working days prior to the hearing.
(b) The report of alleged violations shall contain the following: Alleged violations, a summary of facts supporting the allegations, and the evidence relating to the violations to be introduced at the hearing. The report shall also contain a preliminary recommendation for disposition.
(c) Reports may be submitted electronically.
(5) Community corrections officers shall obtain interpretive services for offenders with known language or communication barriers when serving documents, and, if required, for the hearing.)) (1) The department shall notify each offender placed on community custody of all court and department imposed conditions, requirements, and instructions, and of the department's violation response process.
(2) An offender alleged to have committed a low level violation as determined by department policy will be provided written notice of the alleged violation at the time the offender is detained and will be provided an opportunity to respond.
(3) An offender alleged to have committed a high level violation as determined by department policy has the right to a hearing prior to imposition of any sanction. The offender will receive notice as follows:
(a) Written notice will be served upon the offender not less than twenty-four hours prior to the hearing. The offender may waive the right to such notice at the hearing.
(b) Written notice to the offender will include, but is not limited to:
(i) The offender's rights, including rights specified in WAC 137-104-060 and the offender's right to file a personal restraint petition under court rules after the final decision of the department;
(ii) A copy of the judgment and sentence and the department imposed conditions;
(iii) The alleged violations, including the specific conditions allegedly violated; and
(iv) The supporting evidence relating to the violations that will be introduced and relied upon by the department at the hearing.
(c) The alleged violations may be amended and/or new allegations added at any time prior to the hearing, provided the offender receives written notice of such new and/or amended allegations and all other supporting documentary evidence at least twenty-four hours prior to the hearing. The offender may waive the right to such notice at the hearing.
AMENDATORY SECTION (Amending WSR 01-04-044, filed 2/1/01, effective 3/1/01)
WAC 137-104-050 Hearing procedures.
(1) ((Offenders accused of violating any of the conditions or requirements of community custody will be entitled to a hearing, prior to the imposition of sanctions by the department.
(2))) The hearing shall be conducted by a hearing officer in the department's hearing unit, and shall be considered as an offender disciplinary proceeding and shall not be subject to chapter 34.05 RCW, the Administrative Procedure Act.
(((3) Hearings for community custody offenders, who are being held in total confinement prior to a hearing, shall be conducted within five working days, but not less than twenty-four hours, after service of the notice of allegations, hearing and rights, and waiver form.
(4) Hearings for community custody offenders who are not being held in total confinement shall be conducted within fifteen calendar days, but not less than twenty-four hours, after service of the notice of allegations, hearing and rights, and waiver form.
(5) If an offender is arrested and detained, without a warrant, for violation of conditions of supervision, a probable cause determination will be made by a hearing officer within three working days of the initial detention.
(6) Prior to the commencement of a hearing, the hearing officer shall verify that proper notice of the hearing has been given and that the offender was properly served with the notice of allegations, hearing and rights, and waiver form, given a copy of the report of alleged violations, and provided with all supporting documentary evidence.
(7) The hearing officer, if requested by the offender or the community corrections officer, shall conduct an administrative review of the violation report and any additional information submitted to determine whether there is reason to allow the offender to be conditionally released pending the violation hearing. Such administrative review will be conducted within twenty-four hours of the request for conditional release. Such release must be recommended by the reviewing hearing officer and authorized by the hearings program manager or his or her designee.
(8) A hearing shall be held in all instances when an offender is served with a notice of allegations, hearing and rights, and waiver form.
(9) Community custody hearings shall be electronically recorded on audio cassette tape and the hearing tape shall be retained by the department for twelve months. An offender, who is the subject of the hearing, may request a copy of the tape recording of that hearing by submitting a request in writing along with a blank tape.
(10) The offender)) (2) The hearing officer will control the conduct of the hearing and maintain orderly decorum. The hearing officer will maintain professionalism and impartiality, ensuring all parties are treated equally and with respect.
(3) The hearing officer will ensure all legal protections are afforded the parties. The hearing officer will:
(a) Administer oaths and affirmations;
(b) Ensure the hearing is electronically recorded;
(c) Prohibit ex parte communications;
(d) Verify the offender has received proper notice;
(e) Weigh the credibility of witnesses;
(f) Receive relevant evidence including hearsay evidence;
(g) Question witnesses called by the parties in an impartial manner to elicit any facts deemed necessary to fairly and adequately decide the matter;
(h) Render or defer a decision;
(i) Specify on the record the basis for the findings and decisions;
(j) Provide a written hearing and decision summary to the parties; and
(k) Take any other actions necessary as authorized by these rules and law.
(4) The parties may call witnesses to testify ((on his/her behalf)) at the hearing. The hearing officer may limit the number of witnesses and the scope of the testimony to matters relevant to the allegations and/or disposition. Witnesses and/or witness testimony may be excluded from the hearing to maintain the safety and security of the facility, offender, staff, or others. The parties may submit a list of questions to be asked of an excluded witness.
(((11))) (5) Witnesses may testify outside the presence of the offender when there is substantial likelihood that the witness will suffer significant psychological or emotional trauma if the witness testifies in the presence of the offender, or when there is substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the offender. The hearing officer shall enter findings in the record, as to the necessity of ((such testimony)) allowing the witness to testify outside the presence of the offender, and provide the offender an opportunity to submit questions to be asked of the witness.
(((12))) (6) Community custody violation hearings shall be open to the public unless the hearing officer, for a specifically stated reason, closes the hearing in whole or in part. The public may be excluded by the host facility for safety, security, or capacity reasons.
(((13) At the hearing, the community corrections officer)) (7) The department has the obligation of setting forth evidence supporting the allegations of violations and of offering recommendations for disposition.
(((14))) (8) The department has the obligation of proving each of the allegations of violations by a preponderance of the evidence.
(((15) The hearing officer shall:
(a) Administer oaths and affirmation;
(b) Issue warrants, as necessary;
(c) Weigh the credibility of the witnesses;
(d) Rule on all procedural matters, objections and motions;
(e) Rule on offers of proof, and receive relevant evidence including hearsay evidence;
(f) Question witnesses called by the parties in an impartial manner to elicit any facts deemed necessary to fairly and adequately decide the matter;
(g) Render or defer a decision; and
(h) Take any other actions necessary and authorized by these rules and law.
(16))) (9) The hearing officer((s may grant a request for a continuance of)) may continue the hearing ((as long as such continuation is granted)) for good cause ((and)) if doing so does not unduly delay the hearing.
AMENDATORY SECTION (Amending WSR 01-04-044, filed 2/1/01, effective 3/1/01)
WAC 137-104-060 Rights specified.
The offender subject to a department hearing has the right to:
(1) Receive written notice ((of the alleged violations of the conditions/requirements of supervision)) in accordance with WAC 137-104-040, including the opportunity to examine, no later than twenty-four hours before the hearing, all supporting documentary evidence which the department intends to present during the hearing.
(2) Have an electronically recorded, community custody hearing conducted within five ((working)) business days of ((service of the notice of allegations, hearing and rights, and waiver form)) notice in accordance with WAC 137-104-040; however, if the offender has not been placed in confinement, the hearing will be conducted within fifteen calendar days of ((service of the)) notice.
(3) ((Have)) A neutral and detached hearing officer who will conduct the hearing.
(4) ((Examine, no later than twenty-four hours before the hearing, all supporting documentary evidence which the department intends to present during the hearing.
(5) Admit to any or all of the allegations, which may result in limiting the scope of the hearing.
(6) Be present during the fact-finding and disposition phases of the hearing. If the offender waives his/her right to be present at the hearing, the department may conduct the hearing in the absence of the offender and may impose sanctions that could include loss of liberty of the offender.
(7))) Be present during all phases of the hearing. An offender may waive the right to be present at the hearing; however, if an offender waives this right, the department will conduct the hearing in the offender's absence and may impose sanctions up to and including confinement.
(5) Present the case to the hearing officer. If there is a language or communication barrier, the hearing officer may appoint someone to interpret or otherwise assist. However, no other person may provide representation in presenting the case. There is no right to an attorney or counsel.
(((8))) (6) Cross-examine witnesses ((appearing and)) testifying at the hearing.
(((9))) (7) Testify during the hearing or ((to)) remain silent. Silence will not be held against the offender.
(((10))) (8) Have witnesses provide written or telephonic testimony on ((his/her behalf, either in person or in a witnessed statement/affidavit; provided, however:
(a) In an in-custody hearing, outside witnesses may be excluded due to institutional concerns; or
(b) The hearing officer may exclude persons from the hearing upon a finding of good cause; or
(c) The hearing officer may exclude a witness from testifying at a hearing or may require a witness to testify outside of the offender's presence when there is a substantial likelihood that the witness will not be able to give effective, truthful testimony in the presence of the offender during the hearing. In either event, the offender may submit a list of questions to ask a witness. Testimony may be limited to evidence relevant to the issues under consideration.
(11))) the offender's behalf, unless excluded under WAC 137-104-050.
(9) Request a continuance of the hearing.
(10) Receive a written hearing and decision summary including the evidence presented, a finding of guilty or not guilty, and the reasons to support the findings of guilt and the sanction imposed immediately following the hearing or, in the event of a deferred decision, within two ((working days.
(12) Receive a copy of the full department hearing report.
(13))) business days. Offenders may waive the two business day requirement.
(11) Obtain a copy of the ((audio)) electronic recording of the hearing((, provided, the offender provides a blank audio cassette tape to be used for this purpose.
(14) Appeal to the regional appeals panel, in writing, within seven calendar days of receipt of the hearing and decision summary form. The offender may also file a personal restraint petition to appeal the department's final decision through the Washington state court of appeals.
(15))) upon written request.
(12) Appeal the hearing officer's decision pursuant to WAC 137-104-080.
(13) Waive any or all of the above rights in this section.
AMENDATORY SECTION (Amending WSR 01-04-044, filed 2/1/01, effective 3/1/01)
WAC 137-104-080 Appeals.
(1) The offender may appeal the decision of the hearing officer within seven calendar days to ((the appeals panel. The request for review should be submitted in writing and list specific concerns.
(2) The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to the:
(a) Crime of conviction;
(b) Violation committed;
(c) Offender's risk of reoffending; or
(d) Safety of the community.
(3))) a panel of three reviewing staff designated by the secretary or the secretary's designee. The offender's appeal must be submitted in writing.
(2) The appeals panel shall affirm, modify, reverse and vacate, or remand the decision based on its findings.
(3) If a majority of the panel finds that the sanction was not reasonably related to the crime of conviction, the violation committed, the offender's risk of reoffending, or the safety of the community, then the appeals panel shall modify, reverse and vacate, or remand the decision.
(4) The appeals panel will also examine evidence presented at the hearing and ((reverse)) if a majority of the panel finds that any finding of a violation was based solely on unconfirmed or unconfirmable allegations, then the appeals panel shall modify, reverse and vacate, or remand the decision.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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