COMMITTEE SUBSTITUTE

FOR

COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 497

(By Senators White and Hunter)

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[Originating in the Committee on the Judiciary;

reported February 26, 2003.]

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A BILL to amend and reenact sections one, two, four, five, eight, eleven, twelve, fifteen, nineteen and twenty, article five, chapter twenty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to commercial prisons; setting forth legislative findings; requiring commissioner of corrections to develop certain plans; 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 sections one, two, four, five, eight, eleven, twelve, fifteen, nineteen and twenty, article five, chapter twenty-five of the code of West Virginia, one thousand nine hundred thirty-one, 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 department of 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 for the division of corrections. 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 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. In the event that 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) (e) The commissioner shall have the authority to 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 for a period of one year. The authorization shall be renewed annually unless the commissioner recommends a prison vendor should not continue to be granted the privilege of operating a prison facility in this state.
(e) (g) The commissioner shall have the authority to accept the custody of and to confine inmates from sentencing authorities located outside the state of West Virginia.
(f) (h) The commissioner shall have the authority to 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 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 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 as 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 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 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 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 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 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 affirm, modify or vacate the notice or order. or proposed penalty assessment
(B) Formal hearings shall be 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 the 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 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 make certain changes to existing law relative to private prisons. Proposed provisions include changing the title from "private" to "commercial" prisons; setting forth legislative findings; requiring the commissioner of corrections to develop certain plans; requiring the commissioner to annually make recommendations whether to continue prison vendors' contracts; providing that the secretary of the department of public safety may renew prison vendor contracts only on an annual basis; 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.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)