Senate Bill No. 497
(By Senators White and Hunter)
[Originating in the Committee on the Judiciary;
reported February 26, 2003.]
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
(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
(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
(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
(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;
(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
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:meet all applicable requirements of the American correctional
association standards for correctional facilities.
(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.
(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
(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
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
§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
(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