WSR 98-01-152

PROPOSED RULES

DEPARTMENT OF CORRECTIONS

[Filed December 22, 1997, 10:27 a.m.]

The following Department of Corrections rules amend WAC 137-28-150 and 137-28-190. They are submitted for publication in the Register and the Washington Administrative Code. Pertinent information is as follows:

1. Amendment to WAC 137-28-150 and amendment to WAC 137-28-190 are proposed for adoption.

2. I certify, pursuant to RCW 34.05.030 [(1)](c), that the rules stated above are internal to the management of offenders in the custody of the Department of Corrections and do not affect outside members of the public. These rules are exempt from the Washington State Administrative Procedure Act.

Original Notice.

Title of Rule: Chapter 137-28 WAC, Prisons--Discipline.

Purpose: To clarify and confirm that offenders may be subject to criminal prosecution for persistent prison misbehavior under RCW 9.94.070.

Statutory Authority for Adoption: RCW 72.09.130, 72.01.090, 9.94.070.

Statute Being Implemented: RCW 72.09.130 and 9.94.070.

Summary: These rules clarify and confirm the statutory basis for the department's disciplinary code as it relates to persistent prison misbehavior, and specify that the superintendent of an institution must refer a violation of RCW 9.94.070 to law enforcement authorities for felony prosecution. These rules facilitate a review of and provide an opportunity for comment on the department's disciplinary code in light of the potential for felony prosecution under RCW 9.94.070.

Reasons Supporting Proposal: With the enactment of RCW 9.94.070, offenders are subject to criminal prosecution for persistent prison misbehavior based on a violation of a "serious infraction" as defined by the Department of Corrections. The department's disciplinary code specifies a number of serious infractions. See WAC 137-28-260; WAC 137-56-110. Over the years, the department has developed considerable experience in implementing and refining the disciplinary code. The department believes that the disciplinary code is understandable to offenders, and ensures the effective and fair administration of discipline within adult correctional facilities. The department believes that review of the disciplinary code and these proposed changes will further the effective and lawful implementation of RCW 72.09.130 and 9.94.070.

Name of Agency Personnel Responsible for Drafting: Gary Banning, P.O. Box 41114, Olympia, WA, (360) 753-5770; Implementation and Enforcement: Eldon Vail, P.O. Box 41123, Olympia, WA, (360) 664-0488.

Name of Proponent: Washington State Department of Corrections, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: These rules clarify and confirm the statutory basis for the department's disciplinary code, specify that the prison superintendent must refer a violation of RCW 9.94.070 to law enforcement authorities for felony prosecution, and facilitate comment and review of the department's disciplinary code in light of the potential for felony prosecution under RCW 9.94.070. Although the department is exempt from formal rule making under RCW 34.05.030 (1)(c), through this rule-making proceeding the department seeks to further its reasonable and consistent implementation of authority delegated pursuant to RCW 72.09.130 and 9.94.070.

Proposal Changes the Following Existing Rules: WAC 137-28-150 and 137-28-190. Adds statutory basis for the Department of Corrections' disciplinary code and specifies that the institution superintendent must refer a violation of RCW 9.94.070 to law enforcement authorities for felony prosecution. The changes facilitate a review of and provide an opportunity for comment on the department's disciplinary code in light of the potential for felony prosecution under RCW 9.94.070.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules do not affect businesses.

RCW 34.05.328 does not apply to this rule adoption. These rules are exempt from chapter 34.05 RCW.

Hearing Location: 9th Floor Conference Room, 410 West 5th, Olympia, WA, on January 30, 1998, at 1:30 p.m. pst.

Assistance for Persons with Disabilities: Contact Marilyn Varpness by January 28, 1998, (360) 753-5770.

Submit Written Comments to: FAX (360) 664-2009, by January 30, 1998.

Date of Intended Adoption: February 4, 1998.

December 19, 1997

Joseph D. Lehman

Secretary

AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)

WAC 137-28-150 Authority. The authority for this chapter is RCW 72.01.090, RCW 72.09.130, and RCW 9.94.070..

[95-15-044, 137-28-150, filed 7/13/95, effective 8/15/95.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending WSR 95-15-044, filed 7/13/95, effective 8/15/95)

WAC 137-28-190 Reporting to law enforcement authorities. (1) The superintendent shall report any felony under state or federal law to law enforcement authorities.

(2) When an offender knowingly commits an additional serious infraction after losing all potential earned early release time credits, the Superintendent will report that offender to local law enforcement authorities for possible felony prosecution under RCW 9.94.070.

(((2))) (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.

(((3))) (4) No provisions of these rules shall prevent the administrative segregation of any inmate.