The purpose of this chapter is to specify policies and procedures pertaining to the ((Washington state)) department of corrections' community custody administrative hearings and violation ((hearings))responses. 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.

For purposes of this chapter, the following words have the following meanings:

(1) "Aggravating factors" are circumstances that elevate a low level violation to a high level violation as defined by department policy.

(2) "Appeals 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)))offender appeals of department findings and imposed sanctions.

(4) "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 corrections officer as defined by RCW 9.94A.030.

(5) "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)))community custody as defined by RCW 9.94A.030.

(6) "Department" means the ((Washington state department of corrections.

(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))department of corrections.

(7) "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.

(8) "Hearing officer" means an employee of the department authorized to conduct department hearings.

(((8)))(9) "Hearings ((program manager))administrator" means the ((manager))administrator of the hearings unit of the department((, or the hearings program manager's designee)).

(((9)))(10) "Mitigating factors" are circumstances that may warrant a reduced violation response.

(11) "Offender" means any person in the custody of or subject to the jurisdiction of the department.

(((10)))(12) "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.

(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))partial confinement as defined by RCW 9.94A.030.

(15) "Violation process" means the process by which the court or the department addresses one or more alleged violations.

(1) When addressing the violation 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.

(2) A low level violation may be aggravated to a high level violation upon review of aggravating factors and approval by a hearing officer.

(3) A reduced response to a violation may be approved as defined by department policy and upon review of mitigating factors.

(1) The state and its officers, agents, and employees may not be held criminally or civilly liable for violation response decisions made in accordance with law per RCW 9.94A.737.

(2) The sanction the department imposes shall be determined by the offender's violation behavior and prior violation processes and shall be reasonably related to the crime of conviction, the violation committed, the offender's risk of reoffending, or the safety of the community. The department's response to violation behavior will be defined by department policy.

(3) A community custody offender who violates any court-ordered or department-imposed condition, requirement, or instruction will be sanctioned by the department as provided in RCW 9.94A.737, 9.94A.633, 9.94A.660, 9.94A.662, and 9.94A.6332.

(a) The sanction for an offender who commits a low level violation may be a nonconfinement sanction, or a total or partial confinement sanction of not more than three days.

(b) The sanction for an offender who commits a high level violation may be a nonconfinement sanction, or a total or partial confinement sanction of not more than thirty days, unless subject to return under RCW 9.94A.633 or revocation of an alternative sentence under RCW 9.94A.660 and 9.94A.662. The department will credit an offender's sanction time served pending the hearing or negotiated sanction review.

(i) The offender may be out of custody or held in total or partial confinement pending a formal hearing or negotiated sanction review.

(ii) The offender may be held in total or partial confinement to serve an imposed sanction for a high level violation as determined by department policy.

(1) Hearing officers will report to and be supervised by the hearings ((program manager, within the department's))administrator, and will report through a chain of command separate from that of community corrections or prisons divisions((, through an independent chain of command)).

(2) Hearing officers may not hear a case in which they have direct personal involvement in the incident under consideration and must formally disqualify themselves by notifying the hearings ((program manager))administrator/designee. The hearings ((program manager))administrator/designee will select a replacement hearing officer.

(3) Hearing officers shall disqualify themselves if they believe that they cannot render a fair judgment in the hearing. The hearings ((program manager))administrator/designee may change the hearing officer assigned to hear a case upon a ((written)) request from an offender and a showing of good cause.

(((1) When placed on community custody, offenders shall be provided with written notice of all court and department-imposed conditions and/or requirements.

(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 on community custody of all court and department imposed conditions, requirements, and instructions and of the department's response to violation behavior.

(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)))(2) 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.

(11)))(3) The hearing officer will:

(c) 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, and))will provide the offender an opportunity to submit questions to be asked of the witness.

(((12) 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.

(13) At the hearing, the community corrections officer))

(5) The department has the obligation of setting forth evidence supporting the allegations of violations and of offering recommendations for disposition.

(((14)))(6) The department has the obligation of proving each of the ((allegations of))alleged violations by a preponderance of the evidence.

(((15) The hearing officer shall:

(16) The))(7) Hearing officers may ((grant a request for a continuance of))continue the hearing ((as long as such continuation is granted)) for good cause ((and))if doing so does not unduly delay the hearing.

(1) An offender alleged to have committed a high level violation may waive the hearing and recommend a sanction that is negotiated with the department.

(2) The negotiated sanction shall be reviewed by a hearing officer in the department's hearing unit. A negotiated sanction review shall be considered an offender disciplinary proceeding and shall not be subject to chapter 34.05 RCW, the Administrative Procedure Act.

(3) The hearing officer will determine whether:

(a) The offender knowingly and voluntarily admits guilt to all allegations;

(b) The offender knowingly and voluntarily waives his or her right to a hearing and appeal; and

(c) The recommended sanction is reasonable and within the parameters of department policy.

(4) The hearing officer may reject the negotiated sanction and set the matter over to a hearing.

(5) The negotiated sanction review will be recorded and documented in writing.

((The offender has the right to))An offender subject to a department hearing has rights as specified in RCW 9.94A.737 and the right to:

(1) Receive written notice ((of the alleged violations of the conditions/requirements of supervision.

(2)))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))written notice; however, if the offender has not been placed in confinement, the hearing will be conducted within fifteen ((calendar))business days of ((service of the))written notice in accordance with RCW 9.9A.737.

(3) ((Have))A neutral and detached hearing officer 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)))(5) Be present during the hearing. An offender may waive the right to be present at the hearing or because of disruptive behavior, an offender may be removed from the hearing at the hearing officer's discretion; in both cases, the department will conduct the hearing in the offender's absence and may impose sanctions.

(6) Present the case to the hearing officer. If there is a language or communication barrier, the hearing officer may ((appoint someone))continue the hearing until a qualified individual is identified 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)))in person or by means of an approved language line.

(8) Cross-examine witnesses ((appearing and)) testifying at the hearing.

(9) Testify during the hearing or ((to)) remain silent. Silence will not be held against the offender.

(10) Have witnesses provide written or oral testimony on ((his/her behalf, either in person or in a witnessed statement/affidavit; provided, however:

(11)))the offender's behalf, unless the scope of testimony is limited or the witness is excluded by the hearing officer under WAC 137-104-050.

(12) Receive a written hearing and decision summary including the evidence presented, ((a))the 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.

(15)))business days. Offenders may waive the two business days' requirement.

(16) Waive any or all of the above rights in this section.

(17) Waive the hearing and recommend a negotiated sanction.

(1) The offender may, within seven calendar days, 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.

(3)))findings and imposed sanctions to an appeals panel. The offender's appeal must be submitted in writing.

(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))allegations that were not, or could not be confirmed, then the appeals panel shall reverse, vacate, remand or modify the decision.