COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 71
(By Senators White and Hunter)
____________
[Originating in the Committee on the Judiciary;
reported February 16, 2006.]
____________
A BILL to amend and reenact §25-5-1, §25-5-2, §25-5-4, §25-5-5,
§25-5-8, §25-5-11, §25-5-12, §25-5-15, §25-5-19 and §25-5-20
of the Code of West Virginia, 1931, as amended, all relating
to commercial prisons; setting forth legislative findings;
requiring Commissioner of the Division of Corrections to
develop certain plans; giving the commissioner broad authority
to impose requirements, require reports and impose timetables
for compliance; restricting certain offenders from being
incarcerated in commercial prison facilities; reducing the
amount of time that a contractor has to abate a violation;
prescribing the number of commissioner's representatives that
may be employed at each commercial facility for monitoring
purposes; increasing bonding requirements for contractors;
requiring background checks for employees at commercial facilities; and requiring contractors to be responsible for
certain costs.
Be it enacted by the Legislature of West Virginia:
That §25-5-1, §25-5-2, §25-5-4, §25-5-5, §25-5-8, §25-5-11,
§25-5-12, §25-5-15, §25-5-19 and §25-5-20 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 5. COMMERCIAL PRISONS.
§25-5-1. Short title.
This article shall be known as the Private "Commercial Prison
Enabling and Contracting Act."
§25-5-2. Legislative findings and purpose.
The Legislature hereby finds that adequate and modern prison
facilities are essential to the safety and welfare of the people of
this state and other states and that contracting for portions of
governmental services is a viable alternative for this state and
its political subdivisions.
Further, the Legislature finds that allowing for the
establishment of private prison facilities is an economic
development opportunity for local communities and will augment the
general revenue fund for the safety and welfare of its citizens, it
is the duty of the state to regulate the incarceration of prisoners
in the state.
§25-5-4. Authority of the Commissioner of the Division of
Corrections; authority of Secretary of the Department of Military Affairs and Public Safety.
(a) The Commissioner of the Division of Corrections shall
promulgate rules, in accordance with chapter twenty-nine-a of this
code, to implement the provisions of this article.
(b) The Commissioner of the Division of Corrections shall
develop a plan to regulate commercial prisons. The commercial
prison contractor shall develop a plan for the Division of
Corrections to take control of the commercial prison facility in
the event of an emergency. The plan shall be developed before any
inmates are housed at the facility and approved by the
commissioner.
(c) The commercial prison contractor, local law enforcement
and other emergency service providers shall develop a plan
detailing how to deal with crimes, escapes and other emergencies
that may occur at the facility. The plan shall be developed before
any inmates can be housed at the facility and shall be approved by
the commissioner prior to implementation.
(b) (d) The commissioner shall have the authority to recommend
or to not recommend to the secretary that a prison vendor be
granted the privilege of operating a prison facility in this state.
(c) (e) The commissioner shall have the authority to may issue
notices of violations, assess penalties and proceed in the
collection of money due the state by private contractors.
(d) (f) The secretary of the department of public safety may,
upon the recommendation of the commissioner, grant approval for a
prison vendor to operate a private commercial prison in this state. (e) (g) The commissioner shall have the authority to may
accept the custody of and to confine the confinement of inmates
from sentencing authorities located outside the State of West
Virginia.
(f) (h) The commissioner shall have the authority to may
expend funds contained in the private prison fund, established
pursuant to subdivision (2), subsection (g), section eleven of this
article, to cover any and all expenses incurred because of private
commercial prison operations within the state.
(i) In addition to the reporting requirements contained in
section eight of this article, the commissioner shall require the
prison contractor to submit monthly, quarterly and annual reports
concerning all applicable requirements of the American Correctional
Association standards for correctional facilities, and for any
higher or additional standards the commissioner may choose to
impose. The commissioner may also impose timetables for compliance
with any such standards. Furthermore, the Commissioner may require
the prison contractor to comply with any law, policy or procedure
applicable to a jail or correctional facility operated in this
state and impose timetables to comply with the same.
§25-5-5. Prohibition of constructing or operating a commercial
prison facility; exceptions.
(a) No person may operate a private commercial prison facility
or provide correctional services in this State without first
obtaining the written approval of the secretary.
(b) No person may construct, modify, lease, or otherwise alter a private commercial prison facility without first obtaining the
written approval of the Regional Jail Authority.
(c) Nothing in this section shall may impair the right of the
state or its political subdivisions to operate a prison facility or
provide correctional services.
(d) No private contractor may operate a correctional facility
in this state for the confinement of maximum security inmates or
inmates that would be considered maximum security under the state
classification system sentenced to a term of incarceration by a
foreign court. Further, no private contractor may house inmates
from another state in this state who have a history of: (1)
Assault against another inmate or staff; (2) escaping or attempting
to escape; or (3) communicable diseases.
§25-5-8. Reporting requirements.
The contractor shall prepare the following information and
submit it to the commissioner, as applicable:
(1) The prison vendor shall develop and implement a plan for
the dissemination of information about the facility to the public,
government agencies and the media. This information shall be made
available to all persons. All documents and records, except
financial records, inmate records and personnel records maintained
by the prison vendor shall be deemed public records.
(2) The facility shall comply with all applicable laws and
regulations of the local and state government regarding sanitation,
food service, safety and health. Copies of inspections completed
by the appropriate authorities shall be sent by the contractor to the division.
(3) The facility shall immediately report for investigation
all crimes in connection with the facility to the division of
public safety State Police and all other political subdivisions'
law-enforcement agencies having jurisdiction where the prison is
located and grant them access to the facility to investigate all
crimes. A written report shall be made of all extraordinary or
unusual occurrences and forwarded to the commissioner.
Extraordinary or unusual occurrences shall include, but not be
limited to:
(A) Death of an inmate or staff member;
(B) Attempted suicide or suicide;
(C) Serious injury, whether accidental or self-inflicted;
(D) Attempted escape or escape from confinement;
(E) Fire;
(F) Riot;
(G) Battery, whether by a staff member or inmate;
(H) Sexual assaults; and
(I) Occurrence of contagious diseases.
§25-5-11. Standards of operation; violations.
(a) The facility shall be staffed at all times. The staffing
pattern, shall be adequate to as approved by the commissioner,
shall ensure intense supervision of inmates and maintenance of
security within the facility. The staffing pattern shall address
the facility's operations and programs, transportation and security
needs. In determining security need, considerations shall include, but not be limited to, the proximity of the facility to
neighborhoods and schools.
(b) The facility shall meet all requirements imposed by the
commissioner and provide the following services and programs which
shall be consistent with the standards of the jail and correctional
facilities standards commission:
(1) Health and medical services;
(2) Food services;
(3) Mail, telephone use, and visitation;
(4) Access to legal services and legal materials;
(5) Vocational training;
(6) Educational programs;
(7) Counseling services including personal counseling;
(8) Drug and alcohol counseling; and
(9) Sanitation services meet all applicable requirements of
the American Correctional Association standards for correctional
facilities.
(c) In addition to the requirements of subsections (a) and (b)
of this section, all facilities governed by this article shall be
designed and constructed and at all times maintained and operated
in accordance with standards and rules of the Jail and Correctional
Facility Standards Commission pursuant to section nine, article
twenty, chapter thirty-one of the Code of West Virginia, as
amended: Provided, That any more stringent requirements mandated
by the commissioner shall be complied with.
(d) All facilities governed by this article shall at all times comply with all requirements imposed by the commissioner and all
applicable federal and state constitutional standards, all
applicable federal laws and rules and regulations, state laws and
rules and local ordinances, building, safety and health codes.
(e) If any of the requirements of subsection (a), (b), (c) or
(d) of this section have not been complied with, the commissioner
may shall cause a notice of violation to be served upon the
contractor or his or her duly authorized agent. A copy of the
notice shall be handed to the contractor or his duly authorized
agent in person or served by United States certified mail, return
receipt requested, addressed to the contractor at the permanent
address shown on the application for approval to operate a prison
facility. The notice shall specify in what respects the contractor
has failed to comply with subsection (a), (b), (c) or (d) of this
section and shall specify a reasonable time for abatement of the
violation not to exceed fifteen days. If the contractor has not
abated the violation within the time specified in the notice, or
any reasonable extension thereof, which extension is not to exceed
seventy-five thirty days, the commissioner shall assess a penalty
as hereinafter provided. If a violation is not abated within the
time specified or any extension thereof, a mandatory civil penalty
of not less than five hundred dollars per day per violation shall
be assessed until the violation is abated.
(f) Any contractor who violates any part of subsection (d)of
this section may also be assessed an additional civil penalty in
the discretion of the commissioner. The penalty shall may not exceed five hundred dollars per day. Each day of continuing
violation may be deemed a separate violation for purposes of
penalty assessments. In determining the amount of the penalty, the
commissioner shall consider the contractor's history of previous
violations at the particular facility, the seriousness of the
violation, including any hazard to the health or safety of the
public, whether the contractor was negligent and the demonstrated
good faith of the contractor in attempting to achieve timely
compliance after notification of the violation.
(g)(1) Upon the issuance of a notice or order pursuant to this
section, the commissioner shall, within thirty days, set a proposed
penalty assessment and notify the contractor in writing of such the
proposed penalty assessment. The proposed penalty assessment must
be paid in full within thirty days of receipt thereof or, if the
contractor desires to contest the violation, an informal conference
with the commissioner may be requested within fifteen days or a
formal hearing before three members of the Regional Jail Authority,
who are appointed by the secretary to hear cases pursuant to this
article, may be requested within thirty days. The notice of
proposed penalty assessment shall advise the contractor of the
right to an informal conference or a formal hearing pursuant to
this section. When an informal conference is requested, the
contractor shall have has fifteen days from receipt of the
commissioner's decision resulting therefrom to request a formal
hearing before three members of the Regional Jail Authority.
(A) When an informal conference is held, the commissioner shall have authority to may affirm, modify or vacate the notice or
order. or proposed penalty assessment
(B) Formal hearings shall be are subject to the provisions of
article five, chapter twenty-nine-a of this code. Following the
hearing, the three Regional Jail Authority members may affirm,
modify or vacate the notice or order or proposed penalty assessment
and, when appropriate, incorporate an assessment order requiring
that the assessment and costs of the proceedings be paid.
(2) Civil penalties under this section may be recovered by the
commissioner in the circuit court in the county where the facility
is located or in the circuit court of Kanawha County. Civil
penalties collected under this article shall be deposited with the
State Treasurer to the credit of the Division of Corrections in a
special revenue fund to be known as the "Private Prison Fund,"
which is hereby created.
§25-5-12. Access by contracting agency, commissioner;
reimbursement of expenses; report by commissioner.
(a) The commissioner shall employ full-time authorized
representatives at the facility for monitoring purposes and make
cause to be made such inspections of commercial prison facilities
as are necessary to effectively enforce the requirements of this
article. The commissioner or his or her authorized representative
or a contracting agency shall have access to all areas of the
facility and to inmates and staff at all times. The contractor
shall provide to the commissioner or his or her authorized
representative any and all data, reports and other materials that the commissioner or his or her authorized representative determines
are necessary to carry out inspections pursuant to this article.
(b) The plan shall specify that the private contractor
operating the facility will provide adequate space, equipment and
supplies at the commercial prison facility free of charge for the
authorized representative or representatives. Such office space
will be in close proximity to other administrative offices, and
will be fully equipped and furnished, including a computer, printer
and facsimile machine,
a private telephone line with access to the
internet, and an office door with a lock that is not master keyed.
(b) (c) The plan shall contain a provision requiring that the
contractor shall reimburse the Division of Corrections for expenses
incurred for inspections and the employment of the full-time
authorized representatives. Such The reimbursement shall be
payable to the Division of Corrections.
(c) (d) The commissioner shall report on the performance of
contractors operating within this state, no less frequently than
annually, until the year one thousand nine hundred ninety-three and
thereafter as or when requested by either the Speaker of the House
of Delegates, the President of the Senate, the Regional Jail
Authority or the Governor. Upon such request, the report shall be
submitted to the Speaker of the House of Delegates, to the
President of the Senate, to the Regional Jail Authority and to the
Governor.
§25-5-15. Bonding requirements.
A contractor shall give a performance bond payable to the State of West Virginia, in a form satisfactory to the commissioner,
executed by a surety company qualified to do business in this state
and in the penal sum, as determined by the commissioner, in an
amount not less than one hundred thousand million dollars. The
bond shall be conditioned on the contractor performing all the
requirements of this article and the rules promulgated hereunder.
§25-5-19. Employee training requirements; preference.
(a) The plan shall contain a provision requiring that all
employees of a facility operated pursuant to this article shall
undergo a thorough background investigation approved by the
commissioner and receive training in a program approved by the
commissioner prior to employment. All background investigation and
training expenses shall be the responsibility of the contractor.
(b) West Virginia residents shall be given a hiring preference
for positions at the facilities permitted to operate in accordance
with this article.
§25-5-20. Reimbursement to state and its subdivisions.
Any cost incurred by the state or its political subdivisions
relating to the apprehension of an escapee or the quelling of a
disturbance at the facility shall be chargeable to and borne by the
contractor. The plan shall provide that the private contractor
will be responsible for the cost of any investigation, court
proceedings and subsequent incarceration arising out of criminal
activity within the commercial prison. The contractor shall also
reimburse the state or its political subdivisions for all
reasonable costs incurred relating to the temporary detention of the escapee following recapture.
__________
(NOTE: The purpose of this bill is to require the
Commissioner of Corrections to develop certain plans relating to
commercial prisons and gives the commissioner broad authority to
impose requirements on commercial prisons. It provides for certain
restrictions concerning offender characteristics relative to the
kinds of offenders that may be incarcerated in commercial
facilities. The bill reduces the amount of time that a contractor
has to abate a violation and prescribes the number of
commissioner's representatives that may be employed at each
commercial facility for monitoring purposes. It increases bonding
requirements for contractors; requires background checks for
employees at commercial facilities; and requires contractors to be
responsible for certain costs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)