COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 280
(By Senators Green, White and Chafin)
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[Originating in the Committee on the Judiciary;
reported March 13, 2009.]
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A BILL to repeal §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5,
§28-5B-6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11,
§28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-
17 and §28-5B-18 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new
article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4,
§25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10,
§25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and
§25-7-17, all relating to enacting the Correctional Industries
Act of 2009; authorizing the Commissioner of the Division of
Corrections to enter into correctional industries contracts,
develop a marketing plan, create catalogues and a website and
determine prices; purchasing inmate-made articles and products
by state agencies mandatory; exceptions; creating the
Correctional Industries Account and the Construction and
Operations Account; prohibiting sale of inmate-made goods on
the open market; penalties; exceptions; authorizing the establishment of prison industry enhancement certification
programs pursuant to Title 18 U. S. C. §1761(c); providing for
agreements between private entities and the commissioner or
the director of the Division of Juvenile Services to establish
the federal programs; providing for the contents of the
agreements; and updating certain terms.
Be it enacted by the Legislature of West Virginia:
That §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B-
6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12,
§28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18
of the Code of West Virginia, 1931, as amended, be repealed; and
that said code be amended by adding thereto a new article,
designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6,
§25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25-7-13,
§25-7-14, §25-7-15, §25-7-16 and §25-7-17, all to read as follows:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.
The Legislature finds that the means now provided for the use
of inmate labor are inadequate to furnish a sufficient number of
inmates with employment. It is hereby declared to be the intent of
this article:
(a) To provide more adequate, regular and suitable employment
for the inmates of this state;
(b) To utilize the labor of inmates for self-maintenance and
for reimbursing this state for expenses incurred by reason of their
crimes and confinement;
(c) To effect the requisitioning and disbursement of
correctional industries articles and products directly through
established state authorities with no possibility of private
profits therefrom, except for those specific articles or products
manufactured and sold pursuant to the provisions of Title 18 U. S.
C. §1761(c), the Prison Industry Enhancement (PIE) Certification
Program, and pursuant to sections thirteen, fourteen, fifteen and
sixteen of this article; and
(d) To provide for correctional industries to be a profitable
entity as it is a self-sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the Correctional Industries Act
of 2009.
§25-7-3. Establishment of industries at correctional facilities;
purposes and extent.
The Commissioner of the Division of Corrections or his or her
designee has the exclusive authority to execute any contracts that
are necessary to effectuate the provisions of this article and is
further authorized to purchase equipment, raw materials and
supplies and to employ the supervisory personnel necessary to
establish and maintain for this state at any correctional facility
or institution now or hereafter under control of the commissioner
industries for the utilization of services of inmates in the
manufacture or production of articles or products as may be needed
for the construction, operation, maintenance or use by any office, department, institution or agency supported, in whole or in part,
by this state or as needed by its political subdivisions.
§25-7-4. Correctional industries service contracts.
(a) The commissioner may enter into contracts with private
sector entities which would allow for inmate or resident labor to
be provided through correctional industries and work that involves
exportation of products. For purposes of this article, "service
work" means any work, including repairs, replacement of original
manufactured items, packaging, sorting, recycling, labeling or
similar work that is not original equipment manufacturing. The use
of inmate or resident labor may not result in the displacement of
employed civilian workers within the local region in which work is
being performed. The division may negotiate the wage to be paid
for inmate or resident labor provided under correctional industries
contracts and the wages may be less than the prevailing wage for
work of a similar nature in the private sector.
(b) The Division of Corrections, in cooperation with the
Department of Commerce, shall develop and maintain a marketing plan
encouraging private sector businesses to employ inmates through the
correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.
(a) On and after the effective date of this article, all
offices, departments, institutions and agencies of this state which
are supported, in whole or in part, by state funds shall purchase
all articles or products required from the commissioner if those
articles or products are produced or manufactured by correctional industries, as provided by this article. No state office,
department, institution or agency may purchase any article or
product that is produced by correctional industries from any other
source, unless specifically excepted from the provisions of this
section pursuant to section six of this article.
(b) All purchases of correctional industries' articles or
products by state offices, departments, institutions and agencies
shall be made upon requisition by the proper authority of the
office, department, institution or agency requiring the articles or
products.
(c) Political subdivisions, not-for-profit corporations or
charitable agencies chartered in West Virginia may purchase any
article or product produced by correctional industries. Units of
the federal government and units of state government in other
states may also purchase these articles and products.
All entities
which contract with the state, its political subdivisions, its
agencies or its public institutions may purchase articles or
products from correctional industries which are used in the
performance of the contracts.
§25-7-6. Exceptions as to mandatory purchase requirement.
Exceptions from the mandatory purchase provisions of section
five of this article may be made in any case where any article or
product produced or manufactured by correctional industries does
not meet the reasonable requirements of the requesting state
office, department, institution or agency or where the requisition
cannot be filled because of insufficient supply or other reason. No state office, department, institution or agency may evade the
intent and meaning of this section by requesting unreasonable
deadlines or slight variations from products produced or
manufactured when the articles or products produced or manufactured
by correctional industries are reasonably adapted to the actual
needs of the office, department, institution or agency.
§25-7-7. Catalogues and a website of articles and products made
and produced.
The commissioner shall: (1) Cause to be created and updated
catalogues and a website containing a description of the articles
and products manufactured or produced by correctional industries
pursuant to the provisions of this article; and (2) make copies of
the catalogue and the web site address available to state offices,
departments, institutions and agencies of this state and its
political subdivisions.
§25-7-8. Commissioner to determine prices.
The commissioner or his or her designee shall determine the
prices at which all articles or products manufactured or produced
by correctional industries are furnished, which prices shall be
uniform and nondiscriminating to all, and shall be as near to the
fair market price for those articles or products as is practicable.
§25-7-9. Annual statements by the commissioner.
The commissioner shall annually prepare a financial report in
accordance with generally accepted accounting principles at the
close of each fiscal year on the financial condition of the correctional industries operation. The commissioner shall file the
reports within sixty days after the end of the last preceding year
with the Secretary of the Department of Military Affairs and Public
Safety, the Secretary of the Department of Administration and the
Office of the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
In order to carry out the provisions of this article the
commissioner is authorized to enter into contracts and agreements
with any person or persons regarding the acquisition and purchase
of any equipment, tools, supplies and materials to the extent that
the same may be paid for over a period not exceeding five years.
§25-7-11. Correctional industries account.
(a) There is hereby created in the State Treasury a
nonappropriated special revenue account designated the Correctional
Industries Account. All moneys collected by the commissioner from
the sale or disposition of articles and products manufactured or
produced by inmate labor in accordance with the provisions of this
article shall be immediately deposited in this account.
(b) Except as provided in subsection (c) of this section,
moneys collected and deposited may only be used for the purchase of
manufacturing supplies, equipment, machinery and materials used to
carry out the purposes of this article, as well as for the payment
of the necessary personnel in charge thereof and to otherwise
defray the necessary expenses incident thereto, including inmate
earnings, all of which are under the direction and subject to the
approval of the commissioner.
(c) The Correctional Industries Account may never be
maintained in excess of the amount necessary to efficiently and
properly carry out the intentions of this article and in no event
may the Correctional Industries Account be maintained in excess of
the sum of $1,500,000. When it is determined by the Governor and
the Secretary of the Department of Military Affairs and Public
Safety that the Correctional Industries Account has reached a sum
in excess of the requirements of this article, the excess shall be
transferred at the end of each fiscal year into the Construction
and Operations Account created in subsection (d) of this section.
(d) There is created in the State Treasury a nonappropriated
special revenue account known as the Construction and Operations
Account. This account shall consist of moneys deposited pursuant
to subsection (a) of this section as well as gifts, donations or
any appropriations by the Legislature. The commissioner is
authorized to use funds from the account for the construction of a
new correctional academy and offset operational costs at all
Department of Corrections facilities for building maintenance or
purchase, for equipment repair or replacement and to defray
necessary expenses incident to those activities.
§25-7-12. Sale of inmate-made goods on open market prohibited;
penalty; exceptions.
(a) Subject to the provisions of subsections (c) and (d) of
this section and section five of this article, it is unlawful to
sell or offer for sale on the open market any articles or products
manufactured or produced, wholly or in part, by inmates of this state, or any other state, except inmates on parole or probation.
This section does not apply to articles or products manufactured
and sold pursuant to sections thirteen, fourteen, fifteen and
sixteen of this article or pursuant to the requirements of Title 18
U. S. C. §1761(c), the Prison Industry Enhancement (PIE)
Certification Program, nor does this section apply to the sale of
products made with waste tires: Provided, That any use of waste
tires shall comply with applicable laws and rules of the Division
of Environmental Protection: Provided, however, That any products
made by inmates from waste tires and sold on the open market must
be competitively priced with privately produced goods of the same
nature and may not be sold at a loss: Provided further, That any
profits earned from the sale of products made by inmates from waste
tires shall be distributed to the Correctional Industries Account
to reimburse all moneys expended in the collection of waste tires
and the production of waste tire products, including a reasonable
amount to be set aside for the periodic replacement of outdated,
obsolete or inoperable machinery or equipment used in collection or
production and any moneys remaining shall be divided equally
between the Correctional Industries Account and the Crime Victims
Compensation Fund created by article two-a, chapter fourteen of
this code.
(b) Any person violating the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $200 nor more than $5,000 or confined in jail
not less than three months nor more than one year, or both. Each sale or offer for sale shall constitute a separate offense under
this section.
(c) Notwithstanding the provisions of subsection (a) of this
section, any articles or products manufactured or produced, wholly
or in part, by inmates of West Virginia correctional facilities
which are designed and intended to be used solely by blind and
handicapped persons, including, but not limited to, braille books
and reading materials, may be sold or offered for sale or
distributed on the open market by the Division of Corrections or
other state department or agency.
(d) Notwithstanding the provisions of subsection (a) of this
section, arts and crafts produced by inmates may be sold to the
general public by the Division of Corrections or by other state
agencies or departments as the commissioner may designate. The
arts and crafts may be sold only on a consignment basis so that the
inmates, whose arts and crafts products are sold, shall receive
payment for the products. The payments shall be deposited in
accounts or funds and managed in a manner as provided by section
three-a, article one, chapter twenty-five of this code: Provided,
That when the Division of Corrections or any other agency or
department of state government provides any materials used in the
production of an arts and crafts product, the fair market value of
the materials may be deducted from the account of the individual
inmate after the sale of the product.
(e) For purposes of this section, "arts and crafts" means
articles produced individually by artistic or craft skill such as, but not limited to, painting, sculpture, pottery and jewelry.
(f) Notwithstanding the provisions of subsection (a) of this
section, paper for use in copiers, fax machines, for printing or
duplication purposes and boxes for shipping and storage may be
procured to the extent practicable at the lowest possible price
while at the same time ensuring quality material and timely
delivery thereof for resale to offices, departments, institutions
or agencies supported, in whole or in part, by this state and to
political subdivisions thereof.
§25-7-13. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of inmates by private persons; lease of land and
improvements.
(a) The Commissioner of the Division of Corrections may establish
programs for the employment of inmates by a private person,
corporation, partnership, limited liability corporation or other
business entity for the manufacture of certain articles and
products as part of a program authorized pursuant to Title 18 U. S.
C. §1761(c), the Prison Industry Enhancement (PIE) Certification
Program. In establishing these programs, the commissioner may
enter into agreements with any private person, corporation,
partnership, limited liability corporation or other business entity
to construct or lease facilities upon the premises of any state
adult correctional facility, or at a suitable location as may be
agreed upon, for the manufacture and processing of goods or any other business, commercial or agricultural enterprise.
(b) In administering this chapter, the commissioner may, as
part of or in connection with any agreement made under subsection
(a) of this section, lease, for not more than twenty years, with
options of renewal, land, with the improvements thereon, located on
the grounds of any state correctional facility for use by the
private party to that agreement for providing inmate work under
this article.
§25-7-14. Agreement between commissioner and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; inmate participation on
voluntary basis; and workers' compensation
.
(a) The Commissioner of the Division of Corrections and a
private person, corporation, partnership, limited liability
corporation or other business entity may enter into an agreement to
establish a program for inmates to manufacture articles and
products pursuant to the federal Prison Industry Enhancement (PIE)
Certification Program. The agreement shall include the following:
(1) That an inmate participating be paid at least the
prevailing wage for the type of work as established by the
Department of Workforce Development, including applicable wage
increases for overtime work;
(2) That an inmate's work or participation within a (PIE)
certification program shall be only on a voluntary basis and only
after the inmate has been informed of the conditions of his or her participation;
(3) That, in the discretion of the commissioner or his or her
designee, any inmate may be removed from or not be allowed to
participate in the (PIE) certification program;
(4) That the agreement will not result in the displacement of
civilian workers employed before the program implementation; and
(5) That the private person, corporation, partnership, limited
liability corporation or other business entity shall provide for
workers' compensation insurance or the equivalent coverage to all
inmates participating in the (PIE) certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts provided for in section
four of this article or to operations making articles or products
authorized by section three of this article that are restricted
from sale in the open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d) The earnings of an inmate participating in a (PIE)
certification program under this article shall be deposited in the
Inmate Trust Account with the Division of Corrections. The
earnings shall be paid to the inmate after all state, federal and
local taxes are withheld, together with all other deductions
required and authorized by this chapter, including expenses for
room and board: Provided, That in addition thereto, the
commissioner shall adopt policy and procedures to provide for the deduction of an inmate's earnings in an amount of not less than
five percent nor more than twenty percent to be paid into the Crime
Victims Compensation Fund created by article two-a, chapter
fourteen of this code. Total deductions of an inmate's earnings
shall not exceed eighty percent of the inmate's gross earnings. If
the earnings are deposited by the commissioner, the amount, with
any accrued interest, shall be returned to the inmate no later than
at the time of the inmate's release on parole or discharge.
(e) Spousal support or child support, as directed by the
inmate or as ordered by a family court judge, is to be deducted
from his or her earnings. If the resident's dependents are
receiving Temporary Assistance for Needy Families (TANF), the
disbursements are to be made to the Bureau for Child Support
Enforcement or any other state's public assistance agency.
§25-7-15. Establishment of programs authorized by the federal
Prison Industry Enhancement (PIE) Certification Program for
employment of juvenile residents by private persons; lease of
land and improvements.
(a) The Director of the Division of Juvenile Services may
establish programs for the employment of residents by a private
person, corporation, partnership, limited liability corporation or
other business entity for the manufacture of certain articles and
products as part of a program authorized pursuant to Title 18 U. S.
C. §1761(c), the Prison Industry Enhancement (PIE) Certification
Program. In establishing these programs, the director may enter into agreements with any private person, corporation, partnership,
limited liability corporation or other business entity to construct
or lease facilities upon the premises of any state juvenile
correctional facility, or at a suitable location as may be agreed
upon, for the manufacture and processing of goods or any other
business, commercial or agricultural enterprise.
(b) In administering this article, the director may, as part
of or in connection with any agreement made under subsection (a),
lease, for not more than twenty years, with options of renewal,
land, with the improvements thereon, located on the grounds of any
state correctional facility for use by the private party to that
agreement for providing resident work under this article.
§25-7-16. Agreement between director and private person for
manufacturing pursuant to Prison Industry Enhancement (PIE)
Certification Program; wages; resident participation on
voluntary basis; workers' compensation and unemployment
compensation
.
(a) The Director of the Division of Juvenile Services and a
private person, corporation, partnership, limited liability
corporation or other business entity may enter into an agreement to
establish a program for residents to manufacture articles and
products pursuant to the federal Prison Industry Enhancement (PIE)
Enhancement Program. The agreement shall include the following:
(1) That a resident participating be paid at least the
prevailing wage for the type of work as established by the Department of Workforce Development, including applicable wage
increases for overtime work;
(2) That a resident's work or participation within a prison
industry enhancement program shall be only on a voluntary basis and
only after the resident has been informed of the conditions of the
resident's participation;
(3) That, in the discretion of the director or his or her
designee, any resident may be removed from or not be allowed to
participate in the (PIE) certification program;
(4) That the agreement will not result in the displacement of
civilian workers employed before the program implementation; and
(5) That the private person, corporation, partnership, limited
liability corporation or other business entity provide for workers'
compensation insurance or the equivalent coverage to all residents
participating in the (PIE) certification program.
(b) The provisions of this section shall not apply to
correctional industry service contracts provided for in section
four of this article or to operations making goods authorized by
section three of this article that are restricted from sale in the
open market.
(c) A commercial or agricultural enterprise established under
this chapter is a private enterprise subject to federal and state
laws governing the operation of similar enterprises.
(d)(1) The earnings of a resident participating in a Prison
Industry Enhancement (PIE) Certification Program under this chapter
shall be deposited in the Resident Trustee Account with the Division of Juvenile Services. The earnings shall be paid to the
resident after all state, federal and local taxes are withheld,
together with all other deductions required and authorized by this
chapter. The expenses of room and board, as fixed by the director
and the budget agency, in facilities operated by the director, or,
if the resident is housed in a facility not operated by the
director, the amount paid by the Division of Juvenile Services to
the operator of the facility or other appropriate authority for
room and board and other incidentals as established by agreement
between the Division of Juvenile Services and the appropriate
authority are to be deducted: Provided, That in addition thereto,
the director shall adopt policy and procedures to provide for the
deduction of a resident's earnings in an amount of not less than
five percent nor more than twenty percent to be paid into the Crime
Victims Compensation Fund created by article two-a, chapter
fourteen of this code. Total deductions of a resident's earnings
shall not exceed eighty percent of the resident's gross earnings.
If the earnings are deposited by the director, the amount, with any
accrued interest, shall be returned to the resident no later than
at the time of the resident's release on parole or discharge.
(2) The director may, when special circumstances warrant or
for just cause, waive the collection of room and board charges by
or on behalf of a facility operated by the Division of Juvenile
Services or, if the resident is housed in a facility not operated
by the Division of Juvenile Services, authorize payment of room and
board charges from other available funds.
(e) Spousal support or child support, when directed by the
resident or ordered by a family court judge, is to be deducted. If
the resident's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements are to be made to the
Bureau for Child Support Enforcement or any other state's public
assistance agency.
§25-7-17. Provisions of article severable.
If any section, subsection, provision or sentence of this
article or the application thereof to any person, or any
circumstance, is held invalid, the remainder of the article and the
application of any such section, subsection, provision or sentence
to other persons or circumstances is not affected thereby.
_______
(NOTE: The purpose of this bill is to enact the Correctional
Industries Act of 2009 by modernizing the provisions of the Prison-
made Goods Act of 1939. The bill also authorizes the creation of
the Prison Industry Enhancement Certification Program authorized by
Title 18 U. S. C. §1761(c).
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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.)
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