COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 58
(By Senators White and Hunter)
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[Originating in the Committee on Government Organization;
reported February 26, 2004.]
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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 the commissioner to annually make recommendations on
whether to continue prison vendors' contracts; providing that
the secretary of the department of military affairs and public
safety may renew prison vendor contracts annually; providing
for certain restrictions concerning offender characteristics
relative to the kinds of offenders that may be incarcerated in
commercial 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 all such incarceration 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 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) (c) 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.
If a commercial prison is approved and operating, the commissioner
shall annually make recommendations to the secretary concerning
whether it remains advisable to continue the prison vendors'
authorization to operate prison facilities in the state.
(c) (d) 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) (e) 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
for a period of one year. The authorization shall be renewed
annually unless the commissioner recommends a prison vendor not continue to be granted the privilege of operating a prison facility
in this state.
(e) (f) The commissioner
shall have the authority to may
accept the custody of and to confine inmates from sentencing
authorities located outside the state of West Virginia.
(f) (g) 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.
§25-5-5. Prohibition of constructing or operating a correctional
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) escape or attempted
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 approved by the commissioner in order to
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
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 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 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 prison facilities as are
necessary to effectively enforce the requirements of this article.
The commissioner or his 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 authorized representative any and all data,
reports and other materials that the commissioner
or his 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 detention facility free of charge for
the authorized representative or representatives, that the office
space is in close proximity to other administrative offices and
that the office is equipped and furnished and that it has a private
telephone line and access to a facsimile machine and that the
office door shall have 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 five hundred thousand 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 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 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.
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(NOTE: The purpose of this bill is to require the commissioner
of corrections to develop certain plans relating to commercial
prisons. It requires the commissioner to annually make
recommendations on whether to continue prison vendors' contracts.
It provides that the secretary of the department of military
affairs and public safety may renew prison vendor contracts
annually. 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.)
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