(1) Administrative
confinement is an involuntary nonpunitive status for the segregated confinement
of an inmate whose continued presence in general population poses a serious
threat to life, property, self, staff, or other inmates, or to the security or
orderly running of the institution. Inmate misconduct shall be handled through
the disciplinary procedures.
(2) An
inmate may be placed in administrative confinement for any of the following
reasons:
(a) The inmate presents a
substantial risk to another person, self, or institution security as evidenced
by a behavior or a history of homicidal, assaultive or other violent behavior
or by an attempt or threat to cause that harm.
(b) The inmate's presence in the general
population poses a substantial risk to another person, self or institution
security.
(c) The inmate's activity
gives a staff member reason to believe that the inmate's continued presence in
general population will result in a riot or a disturbance.
(d) The inmate has been identified as having
an active affiliation with an inmate gang or street gang or there are
reasonable grounds to believe that the inmate has an active affiliation with an
inmate gang or street gang; and there is reason to believe that the inmate's
continued presence in the general population will result in a riot or a
disturbance.
(3) An
inmate may be placed in administrative confinement only after a review by the
administrative confinement review committee in accordance with this section. An
inmate may be placed in administrative confinement from the general population
or any form of segregation and may be confined in temporary lockup or TLU in
accordance with the departmental rules, pending a review according to this
section.
(4) An inmate shall be
given written notice of the review which shall include all of the following:
(a) The reason under sub. (2) that
administrative confinement is considered necessary.
(b) The evidence to be considered at the
review.
(c) The sources of
information relied upon unless the disclosure would threaten personal safety or
institution security.
(d) An
explanation of the possible consequences of any decision.
(e) An explanation of the inmate's rights at
a review which include all of the following:
1. The right to be present at the
review.
2. The right to deny the
allegation.
3. The right to present
documentary evidence.
4. The right
to present and question witnesses in accordance with sub. (7) and the hearing
procedures for major disciplinary offenses. In the case that the witness is a
confidential informant, then sub. (5) shall apply.
5. The right to assistance of a staff
representative in accordance with s.
DOC
303.83.
6.
The right to receive a written decision, stating the reasons for it based upon
the evidence.
7. The right to
appeal the finding.
(f)
The date, time, and place of the review and an order that the inmate appear at
the review.
(5)
(a) If a witness is a confidential informant,
a designated security staff member shall do all of the following:
1. Investigate to determine whether
testifying would pose a significant risk of bodily injury to the
witness.
2. Attempt to obtain a
signed statement under oath from the witness and determine that the statement
is corroborated in accordance with s.
DOC
303.84(5) if the designated staff
member finds a significant risk of bodily injury.
3. Prepare a summary of the signed,
corroborated statement to avoid revealing the identity of the
witness.
4. Deliver a copy of the
summary to the inmate and the ACRC hearing officer.
(b) The summary of the statement of the
confidential informant may be considered as evidence.
(c) The ACRC hearing officer shall have
access to the original signed statement and may question the confidential
informant if the confidential informant is available.
(d) The original signed statement shall be
available to the warden or administrator for review.
(e) The original signed statement shall be
kept in a restricted department file.
(6) The review shall take place not sooner
than 2 days and not later than 21 days after service of notice to the inmate.
The inmate may waive these time limits in writing. The administrative
confinement hearing officer may extend the time limit upon written request from
the inmate for good cause. The time limits will be tolled during any time the
inmate is unavailable.
(7) At the
review, all of the following shall occur:
(a)
The reason for placing the inmate in administrative confinement shall be read
aloud.
(b) All witnesses for or
against the inmate, including the inmate and the staff member who recommended
the placement, shall have a chance to speak.
(c) The ACRC hearing officer may require
medical or physical evidence to be offered.
(d) The ACRC hearing officer may permit
direct questions or require the inmate or the inmate's advocate, if any, to
submit questions to the ACRC hearing officer to be asked of the
witnesses.
(e) Repetitive,
disrespectful, or irrelevant questions may be forbidden.
(8) All of the following shall occur after
the review:
(a) The ACRC shall deliberate in
private considering only the evidence presented to it that supports or refutes
the need for administrative confinement and the inmate's records.
(b) The ACRC shall decide whether the
evidence and the records support the need for administrative confinement and,
if so, shall order the placement.
(c) If the vote is not unanimous, the record,
with the views of each ACRC member, shall be forwarded to the warden for a
decision.
(d) The record, except
portions regarding the identities of sources of information or containing
statements or evidence that could, upon disclosure, threaten personal safety or
institution security, shall be shared with the inmate who may make known any
additional relevant information in writing to the warden.
(e) The reasons for the decisions of the ACRC
and warden shall be based upon the evidence and given to the inmate in
writing.
(9) An inmate
may appeal the ACRC's decision to the warden within 10 days of the date of the
decision and again to the administrator within 10 days of the date of the
warden's decision.
(10) An inmate's
progress in administrative confinement shall be reviewed by the ACRC at least
every 6 months following the procedures for review under this section. Monthly
progress shall be reviewed consistent with the review of disciplinary
separation as outlined in s.
DOC
303.73(13).
(11) If an inmate has been in administrative
confinement for 12 months or longer, the warden and administrator shall do all
of the following:
(a) Automatically review a
decision by the ACRC to continue the inmate's confinement in this
status.
(b) Affirm, reverse, or
remand the decision within 10 working days of the earlier decision. A decision
to affirm, reverse, or remand the earlier decision shall state the reasons for
it based on the evidence. A failure to issue a decision within the time
allotted shall constitute an affirmance of the earlier decision.
(c) Send a copy of the warden's and
administrator's decision to the ACRC and inmate. The decision of the warden and
administrator is final except that the inmate may challenge any procedural
[errors] through the inmate complaint review system under ch. DOC
310.
(12) While in
administrative confinement, an inmate:
(a)
Shall have a classification of maximum custody; supervision, movement, and
program shall be in accordance with ss.
DOC
302.09(1) and
306.10.
(b) Shall be allowed to have any property in
the inmate's cell that is consistent with property limits for the assigned
area.
(c) Shall be permitted
visitation in accordance with ch. DOC 309.
(d) May receive and send mail in accordance
with ch. DOC 309.
(e) Shall be
permitted to shower at least once every 4 days.
(f) Shall be provided religious, social, and
clinical services as possible; however, they must be provided at the inmate's
cell unless otherwise authorized by the warden.
(g) May earn extra good time credit in
accordance with ch. DOC 302, and all inmates shall earn compensation consistent
with pay for involuntarily unassigned inmates.
(h) May not go to the canteen in person but
may have approved items from the canteen delivered to the inmate.
(i) May have any other properties and
privileges consistent with departmental rules, at the discretion of the
warden.
Notes
Wis. Admin. Code
Department of Corrections
DOC 308.04
Cr. Register, April,
1981, No. 304, eff. 5-1-81; r. and recr. (2) and (4), am. (5), (6), (7) and
(11), Register, April, 1985, No. 352, eff. 5-1-85; emerg. am. (12) (a), eff.
11-18-85; am. (12) (a) Register, May, 1986, No. 365, eff. 6-1-86; emerg. am.
(2) (b), eff. 12-5-86; r. and recr. (12) (g), Register, February, 1987, No.
374, eff. 3-1-87; am. (2) and (4) (e) 4., Register, June, 1987, No. 378, eff.
7-1-87; am. (1), (2) (a), (3), (4) (intro.) to (e) 3., 5. to 7. and (12), r.
and recr. (2) (b), (c), (4) (e) 4., r. (8) and (11), cr. (2) (d), (5), and (9),
renum. (5), (6),(7), (9), (10) to be (6), (7), (8), (10), (11), and am.,
Register, June, 1998, No. 510, eff. 7-1-98; CR 11-022: am. (4) (e) 5., (5) (a)
2., (10) Register September 2014 No. 705, eff. 1-1-15.
Amended by, CR
17-026: am. (12) (a)
Register
June 2018 No. 750, eff. 7/1/2018
Administrative confinement under s. DOC 308.04 is a
nonpunitive measure taken to ensure personal safety and security within the
institution. This measure may be infrequently needed and of short duration but,
as to a particular inmate, the reasonable needs of safety and security within
the institution may require continued confinement for long periods of
time.
Sub. (2) establishes the conditions under which
administrative confinement may be used. Administrative confinement is a vehicle
for removing inmates from the general population to protect and ensure the
safety, security and orderly running of the institution. Without the ability to
confine this type of inmate, the primary security objectives of the department,
namely protecting the public, staff, inmates, and property, cannot be
met.
Inmate misconduct is handled through the disciplinary
process. Segregation in administrative confinement cannot be a penalty for
misconduct, but may result either prior to or subsequent to a disciplinary
proceeding or independent of any such proceeding.
Sub. (3) requires special review by the ACRC. This review
incorporates components of the standard of the major disciplinary hearing
procedure. This review is provided despite the fact that the U.S. Supreme Court
has indicated that due process does not require this review for these
transfers. Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S.
236 (1976). In Caldwell v. Miller, 790 F2d 589 (7th Cir 1986), the court found
no liberty interest in a transfer from one cell block in an institution to
another. Due process protections are important and are afforded to few inmates
affected by this provision because of the seriousness of the prolonged social
isolation of administrative confinement. Nonetheless, by providing the review,
the Department does not intend to create any protected liberty interest by
using mandatory language. Administrative confinement is a typical approach used
in prison to respond to situations listed in this chapter. See Sandin v.
Conner, 115 S. Ct. 2293 (1995).
At this special review, in this status, there must be proof,
from evidence presented at the hearing and from the inmate's records, that he
or she meets one of the criteria for administrative confinement under sub. (2).
The responsibility for placement rests solely with the ACRC. An appeal is
provided first to the warden and then to the administrator of the division of
adult institutions, one of the highest levels in the department, in recognition
of the potential serious consequences of prolonged segregation in
administrative confinement.
Sub. (4) gives the inmates certain rights. It requires that
adequate written notice of the review be given the inmate. If necessary, a
verbal explanation of the notice should be made in accordance with the inmate's
needs. The rights also include the right to present and question a witness in
the same manner as for due process hearings, s.
DOC
303.84.
Sub. (9) provides for a review of the inmate's status at
least once every 6 months. A review may occur earlier at the discretion of the
warden. This time period balances fairness to the inmate with the
practicalities of providing for a meaningful review by the ACRC. Compliance
with departmental rules alone may not be sufficient and an inmate may continue
to be confined if there is still reasonable fear of violent behavior, harm to
the inmate by others, harm to others or riots.
Sub. (10) reflects the view that administrative confinement
may have serious consequences and that extreme care should be exercised at the
highest level in assessing the need for continued confinement.
This chapter is in substantial accord with the provisions
regarding the special management of inmates in the American Correctional
Association's Manual of Standards for Adult Correctional Institutions (1993),
standards 3-4237, 3-4249, 3-4254, 3-4255, and
3-4261.
