Senate Bill No. 497
(By Senators White and Hunter)
[Introduced February 12, 2003; referred to the Committee on
Government Organization; and then to the Committee on the
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 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
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 and maintain oversight over
all such incarceration in the state.
§25-5-4. Authority of the commissioner of the division of
corrections; authority of secretary of department of
(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 take control of any private facility in the event
of an emergency. The plan shall be developed before any inmates
are housed at the facility.
(c) The commissioner shall develop a coordinated plan with the
private prison contractor, local law enforcement and other
emergency service providers detailing how to deal with crimes,
escapes and other emergencies that may occur at the facility. The
plan shall be developed before any inmates may be housed at the
(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.
Thereafter, the commissioner shall annually make recommendations to
the secretary concerning whether it remains advisable to continue prison vendors' contracts 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 prison in this state for a
period of one year. The approval 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
(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 prison
operations within the state.
§25-5-5. Prohibition of constructing or operating a correctional
(a) No person may operate a private 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 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 in
this state who have a history of: (1) Assault against another
inmate or staff; (2) escape or attempted escape; (3) communicable
§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 considered 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
(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 pattern,
shall be adequate as determined by the commissioner, shall
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.
(c) In addition to the requirements of subsections (a) and (b)
of this section, all facilities governed by this article shall be
designed, 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 subsections (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 subsections (a), (b), (c) or
(d) 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) 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 no less than one nor more
than four full-time authorized representatives at the facility for
monitoring purposes and make
cause to be made
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 provision shall specify that the private contractor
operating the facility will provide space, equipment and supplies
at the private 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 contractor shall reimburse the division of
corrections for expenses incurred for inspections and the
employment of full-time authorized representatives.
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
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) All employees of a facility operated pursuant to this
article shall undergo a background investigation conducted by the
department and receive training in a program approved by the
commissioner prior to performing work at the facility. 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. Further, the private contractor shall be responsible
for the cost of any investigation, court proceedings and subsequent
incarceration arising out of criminal activity within the private
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 make certain changes to
existing law relative to private prisons. Proposed provisions
include changing the short 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