The purpose and effect of the rulemaking is update and re-structure the rule. Permissible clothing is updated to include Croc-style shoes. The rulemaking adds language clarifying that clothing and bedding, as well as their exchange, will be ...

 

DEPARTMENT OF CORRECTIONS

RULE NO.: RULE TITLE:
33-601.830: Death Row

PURPOSE AND EFFECT: The purpose and effect of the rulemaking is update and re-structure the rule. Permissible clothing is updated to include Croc-style shoes. The rulemaking adds language clarifying that clothing and bedding, as well as their exchange, will be provided to death row inmates on the same basis as the general inmate population with limited exceptions for the welfare of the inmate or institutional security. Products containing baby oil, mineral oil, cocoa butter or alcohol are prohibited. New provisions permit consulate visits. Finally, restrictions on the place and manner of outdoor exercise are provided for inmates documented to have been involved any major rule violation requiring heightened security measures. The term “major rule violation” is defined in the rulemaking.

SUMMARY: The rulemaking amends definitions, updates permissible clothing, specifies the manner in which clothing, bedding and linens are provided as well as exchanged, prohibits certain comfort items for Phase I and II inmates, provides for consulate visits, and authorizes restrictions on outdoor exercise for death row inmates documented to be involved in a major rule violation.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: upon review of the proposed changes to these rules and incorporated forms, the department has determined that the amendments will not exceed any one of the economic analysis criteria in a SERC as set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 944.09 FS.
LAW IMPLEMENTED: 944.09 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Laura Gallagher 501 S. Calhoun Street, Tallahassee, Florida 32399-2500

 

THE FULL TEXT OF THE PROPOSED RULE IS:

33-601.830 Death Row.

(1) Definitions.

(a) No change.

(b) Institutional Classification Team (ICT) – the team consisting of the warden, or assistant warden, classification supervisor, a correctional officer chief and other members as necessary when appointed by the warden or designated by rule that is responsible for making inmate status decisions and for making other recommendations to the state classification office, regional director, and warden.

(c) No change.

(d) State Classification Office (SCO) – A staff member at the central office level who is responsible for the review of inmate classification decisions. Duties include approving, disapproving, or modifying, or rejecting ICT recommendations.

(e) Major Rule Violation – any assault, battery or attempted assault or battery; any intentional lewd or lascivious exhibition in the presence of staff or visitors; any spoken or written threat towards any person; inciting, attempting to incite or participating in any riot, strike, mutinous act or disturbance; fighting; possession or trafficking of weapons, ammunition, explosives, cell phones, unauthorized drugs, escape paraphernalia, or any other item that presents a threat to the safe and secure operation of the institution; and any escape or escape attempt.

(2) No change.

(3) Reviews.

(a) No change.

(b) ICT Reviews – The ICT shall conduct a review of a death row inmate when the inmate:

1. Is found guilty of a disciplinary report; or

2. Has had restrictions placed on his outdoor exercise pursuant to subparagraph (7)(j)(i)3. This review shall be conducted every six months after imposition of the restriction.

(4) through (6) No change.

(7) Conditions and Privileges – The following conditions and privileges apply to all death row inmates except Phase I and Phase II inmates.

(a) Clothing and Bedding – No death row inmate will be issued a belt. “Croc” style shoes will be provided as regulation foot wear. Unless there is a clear indication of a security concern, death row inmates will be issued clothing and bedding similar to that issued to the general population, except that Ddeath row inmates will be distinguished by designated different clothing that must be worn whenever they are out of the death row unit for the purpose of escort or transport. Otherwise, death row inmates shall be provided the same clothing and clothing exchange as the general inmate population unless there are facts to suggest that on an individual basis exceptions are necessary for the welfare of the inmate or the security of the institution. If an inmate’s clothing is removed, a modesty garment shall be immediately obtained and given to the inmate. If the inmate chooses not to wear the garment, the garment shall be left in the cell and this action shall be documented on Form DC6-229, Daily Record of Special Housing. Form DC6-229 is incorporated by reference in Rule 33-601.800, F.A.C. The effective date of the form is 4-6-11. Under no circumstances shall an inmate be left without a means to cover himself or herself. Shower slides or personal canvas shoes will be provided as regulation foot wear. No death row inmate will be issued a belt.

(b) Bedding and linen – Bedding and linen shall be issued and exchanged for death row inmates shall be the same as is provided to the general inmate population, and any restrictions shall be based on potential harm to individuals or threat to the security of the institution. The senior correctional officer on duty must initially approve the decision to make an exception to the general bedding and linen exchange and shall document the action on Form DC6-229, Daily Record of Special Housing. Form DC6-229 is incorporated by reference in Rule 33-601.800, F.A.C. The duty warden shall make the final decision regarding the appropriateness of the action no later than the next working day.

(c)(b) Comfort Items – Unless there is a clear indication of a security concern, inmates on death row shall be permitted personal hygiene items and other medically needed or prescribed items, such as eye glasses and hearing aids. Death row inmates shall not possess any products that contain baby oil, mineral oil, cocoa butter, or alcohol. At a minimum, death row inmates will be provided a toothbrush, toothpaste, a bar of soap, a towel or paper towels, toilet tissue, and feminine hygiene products for women.

(d)(c) Personal Property – Inmates on death row shall be allowed to possess personal property such as comfort items, watches, rings, stamps, envelopes, writing paper, and approved televisions, fans, walkman-type radios, MP3 players, headphones, and earbuds unless there is a clear indication of a security concern. Each inmate may possess no more than one approved television, fan, radio, MP3 player, set of headphones, and set of earbuds.

(e)(d) Canteen – Death row inmates shall be permitted to make authorized canteen orders in accordance with Rule 33-203.101, F.A.C once per week.

(f)(e) Writing Utensils – Inmates on death row shall possess only security pens, with a possession limit of four. If no security pens are available, an inmate will be allowed to sign out a regular pen from the assigned officer, which must be returned upon completion of preparation of the document. Care will be taken to ensure that an inmate who requests a pen in order to prepare legal documents or legal mail or to file a grievance with the Department has access to a pen for a time period sufficient to prepare the legal mail, documents, or grievances.

(g)(f) Reading Material – Inmates shall be provided access to admissible reading material as provided in Rule 33-501.401, F.A.C., unless there is an indication of a threat to the safety, security, or sanitation of the institution. If it is determined that there is such a threat, the material will be removed. Removal of reading material shall be documented and reviewed in accordance with paragraph (7)(i)(h).

(h)(g) Televisions – An inmate on death row may possess a television in his cell. Approved televisions may be purchased from the institutional canteen; otherwise, televisions will be provided by the Department, if available, as follows:

1. through 6. No change.

(i)(h) Removal or Denial of Items – Any item may be denied an inmate or removed from a death row cell to prevent the inmate from inflicting injury to himself or others, to prevent the destruction of property or equipment, or to prevent the inmate from impeding security staff from accomplishing functions essential to the unit and institutional security. The senior correctional officer on duty must initially approve the decision to deny or remove clothing, bedding, or any other items from the cell and document the action on Form DC6-229, Daily Record of Special Housing. Removal of any personal property item will also be documented by security staff on Form DC6-220, Inmate Impounded Personal Property List, and signed by the inmate designating what personal items were removed. Form DC6-220 is incorporated by reference in Rule 33-602.201, F.A.C. The effective date of the form is 10-06. The original Form DC6-220 will be placed in the inmate’s property file, and a copy of the form will be given to the inmate for his records. The duty warden shall make a final decision regarding the appropriateness of any removal no later than the next working day. If an inmate’s clothing is removed, a modesty garment shall be provided to the inmate immediately; if the inmate chooses not to wear the garment, it shall be left in the cell, and this action shall be documented on Form DC6-229. Under no circumstances will the inmate be left without a means to cover himself. If items are removed from a death row cell pursuant to this paragraph, staff shall re-assess the need for continued restriction every 72 hours thereafter and document the assessment on Form DC6-229. The warden, based on this assessment, will make a final determination on the continued denial or return of the items and document the decision on Form DC6-229. The items will be returned to the inmate when no further behavior or threat of behavior of the type leading to the restriction is present.

(j)(i) Exercise – An exercise schedule shall be implemented to ensure a minimum of six hours per week of exercise out-of-doors. Such exercise periods shall be documented on Form DC6-229, Daily Record of Special Housing.

1. No change.

2. The ICT is authorized to deny exercise for an individual inmate when the inmate is found guilty of a major rule violation as defined in this rule Rule 33-601.800, F.A.C. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for no more than 15 days per incident and for no longer than 30 days in cumulative length. If the inmate requests a physical fitness program handout, the wellness specialist or the confinement officer shall provide the inmate with an in-cell exercise guide; this shall be documented on Form DC6-229.

3. The ICT is authorized to restrict the place and manner of outdoor exercise, such as an inmate’s ability to interact with other inmates or use exercise equipment, if the inmate has been convicted of or found guilty through the department’s disciplinary process in Chapter 33-601103, F.A.C. or an investigation sufficiently documents that the inmate was involved in, of:

a. Assault or battery, murder, or attempted murder of a correctional officer, volunteer, visitor, or other inmate within an institution; or

b. Escape or attempted escape; or.

c. Possession of escape paraphernalia; or

d. Any major rule violation which requires heightened security measures to ensure the safety of staff, inmates and the public or the security of the institution.

4. Phase III inmates shall be restricted from exercise pursuant to subparagraph (15)(b)8.

(k)(j) Telephone Privileges – When alternative means of access are not feasible, telephone privileges shall be allowed for emergency situations, such as notifications of family deaths, and when necessary to ensure the inmate’s access to attorneys or the courts. The necessity of the telephone call may be verified before the inmate is allowed to make the call. Calls to attorneys will not be monitored.

(l)(k) Visitation – Death row visits shall be contact visits unless security concerns indicate that a non-contact visit is necessary, in which case the non-contact visit shall be approved by the warden in advance. Visitation shall be on Saturday or Sunday (only one day of visitation per week per inmate) between the hours of 9:00 a.m. and 3:00 p.m. The visitation provisions of Chapter 33-601, F.A.C., otherwise apply. News media visits shall be in accordance with Rule 33-104.203, F.A.C.

(m)(l) Library Services – Inmates shall be allowed to check out library books once weekly, with a possession limit of four books.

(n)(m) Self-Improvement Programs – Inmates shall be permitted to participate in self-improvement programs unless participation poses a security threat to inmates or staff. Such programs shall take place in the inmate’s housing area in a manner that conforms to the need for security.

(8) Personal Hygiene – Inmates on death row shall meet the same personal hygiene standards required of the general population.

(9) Correspondence – Correspondence shall be in accordance with Chapter 33-210, F.A.C.

(10) Attorney and Consulate Visits – Attorney visits shall be in accordance with Rule 33-601.711, F.A.C. and Consulate visits shall be in accordance with Rule 33-601.7115, F.A.C.

(11) through (12) No change.

(13) Form DC6-228, Inspection of Special Housing Record, shall be maintained in each death row unit. Form DC6-228 is incorporated by reference in Rule 33-601.800, F.A.C. The effective date of the form is 2-01. Each staff person shall sign the form when entering and leaving the death row unit. Prior to departure, each staff member shall indicate any specific problems, including any inmate who requires special attention. Upon completion, Form DC6-228 will be maintained in the housing area and forwarded to the correctional officer chief on a weekly basis, where it will be maintained on file pursuant to the current retention schedule.

(14) Form DC6-229, Daily Record of Special Housing, shall be maintained for each inmate in the death row unit. Form DC6-229 shall be maintained in the housing area for 30 days, after which the form will be forwarded to the warden for review. Once reviewed, these forms will be forwarded to classification to be filed in each inmate’s respective file. Form DC6-229 shall be utilized to document any and all activities, including cell searches, items removed, showers, recreation, haircuts, and shaves. Form DC6-229B, Daily Record of Special Housing – Supplemental, may be used if further writing space is needed. Form DC6-229B is incorporated by reference in Rule 33-601.800, F.A.C. The effective date of the form is 4-27-08. Additionally, staff shall fully and completely document when:

(a) through (j) No change.

(15) Death Warrants – Upon receipt of a death warrant signed by the Governor authorizing execution, the warden or designee will determine the housing location of the inmate. Inmates housed at Union Correctional Institution will be immediately transferred to Florida State Prison. Upon arrival, the warden will inform the inmate of the death warrant, and the inmate shall be allowed to contact his attorney and a family member at state expense. If the inmate is housed at Lowell Correctional Institution, the inmate shall not be transferred to Florida State Prison until Phase II. The warden at Lowell will inform the inmate of the death warrant and allow the inmate to contact her attorney and a family member at state expense.

(a) No change.

(b) Conditions and privileges for Phase I and Phase II inmates.

1. Phase I and Phase II inmates may possess the following state issued property:

a. through r. No change.

s. Form DC1-303, Request for Administrative Remedy or Appeal, and Form DC6-236, Inmate Request, as needed. Forms DC1-303 is and DC6-236 are incorporated by reference in Rule 33-103.006 33-103.019, F.A.C. The effective date of the form is 2-05. Form DC6-236 is incorporated by reference in Rule 33-103.005, F.A.C. The effective date of the form is 6-12.

2. through 4. No change.

5. Canteen privileges will be allowed in accordance with paragraph (7)(e)(d) above but may be restricted or denied if they pose a security threat. Canteen orders shall be reviewed by the administrative lieutenant prior to delivery.

6. through 7. No change.

8. Exercise for all inmates with signed death warrants, including Phase III inmates, shall be suspended. However, an inmate shall be permitted to resume exercise and recreation in accordance with subparagraphs (7)(j)(i)1.-3. if he remains in Phase III status longer than 90 days.

(16) No change.

Rulemaking Authority 944.09 FS. Law Implemented 944.09 FS. History–New 11-22-10, Amended 9-27-11,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: James Upchurch, Director, Office of Institutions

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth S. Tucker, Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 5, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 15, 2012