COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 263
(By Senators Green, White and Palumbo)
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[Originating in the Committee on the Judiciary;
reported March 3, 2009.]
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A BILL to amend and reenact §25-1-17 and §25-1-18 of the Code of
West Virginia, 1931, as amended, all relating to monitoring of
inmate telephone calls and mail; procedures and restrictions;
authorizing disclosure under certain circumstances; and
providing for retention, maintenance and destruction of
telephone recordings and mail.
Be it enacted by the Legislature of West Virginia:
That §25-1-17 and §25-1-18 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. ORGANIZATION AND INSTITUTIONS AND CORRECTIONS
MANAGEMENT.
§25-1-17. Monitoring of inmate telephone calls; procedures and
restrictions; calls to or from attorneys excepted.
(a) The Commissioner of Corrections or his or her designee is
authorized to monitor, intercept, record and disclose telephone
calls to or from adult inmates of state correctional institutions in accordance with the following provisions:
(1) All adult inmates of state correctional institutions shall
be notified in writing that their telephone conversations may be
monitored, intercepted, recorded and disclosed;
(2) Only the commissioner,
warden, administrator or their and
his or her designee shall have access to recordings of inmates'
telephone calls unless disclosed pursuant to subdivision (4) of
this subsection;
(3) Notice shall be prominently placed on or immediately near
every telephone that may be monitored;
(4) The contents of inmates' telephone calls may be disclosed
to
the an appropriate law-enforcement agency
only if the pursuant
to an order of a court or administrative tribunal when disclosure
is necessary for the investigation, prevention or prosecution of a
crime or to safeguard the orderly operation of the correctional
institution. Disclosure may be made in civil or administrative
proceedings pursuant to an order of a court or an administrative
tribunal when the disclosure is:
(A) Necessary to safeguard
and protect the orderly operation
of the correctional institution;
(B) Necessary for the investigation of a crime;
(C) Necessary for the prevention of a crime;
(D) Necessary for the prosecution of a crime;
(E) Required by an order of a court of competent jurisdiction;
or
(F) (B) Necessary to protect persons from physical harm or the threat of physical harm;
(5) All recordings of telephone calls
must be destroyed within
twelve months unless disclosed pursuant to subdivision (4) of this
subsection; and shall be retained for at least three years and
maintained and destroyed in accordance with the record retention
policy of the Division of Corrections adopted pursuant to section
one, article eight, chapter five-a of this code, et seq.; or
(6) To safeguard the sanctity of the attorney-client
privilege, a telephone line that is not monitored shall be made
available for telephone calls to or from an attorney.
Such These
calls shall not be monitored, intercepted, recorded or disclosed in
any matter.
(b) The commissioner shall propose legislative rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to effectuate the provisions of this section.
(c) The provisions of this section shall apply only to those
persons serving a sentence of incarceration in the custody of the
Commissioner of Corrections.
§25-1-18. Monitoring inmate mail; procedures and restrictions;
identifying mail from a state correctional
institution; mail to or from attorneys excepted.
(a) The Commissioner of Corrections or his or her designee is
authorized to monitor, open, review, copy and disclose mail
sent to
adult inmates of state correctional institutions in accordance with
the following provisions:
(1) All adult inmates of state correctional institutions shall
be notified in writing that their mail may be monitored, opened,
reviewed, copied and disclosed;
(2) Only the commissioner and his or her designee shall have
access to copies of inmates' mail unless disclosed pursuant to
subdivision (4) of this subsection;
(3) Notice that the mail may be monitored shall be prominently
placed on or immediately near every mail receptacle or other
designated area for the collection or delivery of mail;
(4) The contents of inmates' mail may be disclosed to
an
appropriate law-enforcement
authorities only if the disclosure is
agency pursuant to an order of a court or administrative tribunal
when disclosure is necessary for the investigation, prevention or
prosecution of a crime or to safeguard the orderly operation of the
correctional institution. Disclosure may be made in civil or
administrative proceedings pursuant to an order of a court or
administrative tribunal when the disclosure is:
(A) Necessary to safeguard
and protect the orderly operation
of the correctional institution;
(B) Necessary for the investigation of a crime;
(C) Necessary for the prevention of a crime;
(D) Necessary for the prosecution of a crime;
(E) Required by an order of a court of competent jurisdiction;
or
(F) (B) Necessary to protect persons from physical harm or the
threat of physical harm;
(5) All copies of mail
must be destroyed within twelve months
unless disclosed pursuant to subdivision (4) of this subsection;
shall be retained for at least three years and maintained and
destroyed in accordance with the records retention policy of the
Division of Corrections adopted pursuant to section one, article
eight, chapter five-a of this code, et seq.; or
(6) The inmate whose mail has been copied and disclosed under
this section shall be given a copy of all such mail
when it is
determined by the commissioner, warden or administrator not to
jeopardize the safe and secure operation of the facility or to be
detrimental to an ongoing investigation or administrative action.
(b) To safeguard the sanctity of the attorney-client
privilege, mail to or from an inmate's attorney shall not be
monitored, reviewed, copied or disclosed in any manner unless
required by an order of a court of competent jurisdiction.
However, such mail may be checked for weapons, drugs and other
contraband provided it is done in the presence of the inmate
and
there is a reasonable basis to believe that any weapon, drug or
other contraband exists in the mail.
(c) All inmates' outgoing mail must be clearly identified as
being sent from an inmate at a state correctional institution and
must include on the face of the envelope the name and full address
of the institution.
(d) The Commissioner of Corrections or his or her designee is
authorized to open, monitor, review, copy and disclose an inmate's
outgoing mail in accordance with the
following provisions
of subsection (a) of this section.
(1) The inmate has previously sent mail that was threatening
to the recipient or that would facilitate physical violence or
other criminal activity; and
(2) Such correspondence has come to the attention of the
commissioner of corrections or the warden or administrator of the
correctional institution;
(3) The contents of any inmate's outgoing mail may be copied
and disclosed to appropriate law-enforcement authorities where the
commissioner or his or her designee has reasonable cause to believe
that it is necessary for the prevention, investigation, or
prosecution of a crime or where necessary to protect persons from
physical harm or the threat of physical harm;
(4) Only the commissioner and his or her designee shall have
access to copies of inmate's outgoing mail unless disclosed
pursuant to subdivision (3) of this subsection;
(5) All copies of mail must be destroyed within twelve months
unless disclosed pursuant to subdivision (3) of this subsection;
(6) The inmate whose mail has been copied and disclosed under
this section shall be given a copy of all such mail and
(7) The provisions of this subsection do not apply to mail
that an inmate sends to his or her attorney. Such mail may only be
monitored or checked according to subsection (b).
(e) The commissioner shall propose legislative rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to effectuate the provisions of this section.
(f) The provisions of this section shall apply only to those
persons serving a sentence of incarceration in the custody of the
Commissioner of Corrections.
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(NOTE: The purpose of this bill is to allow for disclosure of
the recordings of inmates' telephone calls to law-enforcement
agencies when disclosure is necessary for investigation, prevention
or prosecution of a crime, as well as allowing for disclosure in
civil or administrative proceedings in certain instances. The bill
would also allow for disclosure of inmates' mail to law-enforcement
agencies when disclosure is necessary for the investigation,
prevention or prosecution of a crime, as well as allowing for
disclosure in civil or administrative proceedings in certain
instances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended for introduction and passage during
the 2009 Regular Session of the Legislature by the Legislative
Oversight Committee on Regional Jail and Correctional Facility
Authority.)