The executive and administrative head of the department of corrections shall be a commissioner who shall be appointed, dismissed and paid in accordance with the provisions of section two-a, article seven, chapter six of this code.
The commissioner shall take and subscribe to the oath prescribed by the constitution for public officials and shall execute an official bond in a penalty of fifteen thousand dollars, conditioned as required by law. Premiums on such bond shall be paid from appropriations made for the commissioner's office. Such bond shall be approved as to form by the attorney general and as to sufficiency by the governor and, when fully executed and approved, shall be filed in the office of the secretary of state.
Nothing herein contained shall be construed so as to give the commissioner of corrections any authority in the administration, management or control of mental institutions, heretofore transferred to the department of mental health by an act of the Legislature, regular session, one thousand nine hundred fifty-seven.
(1) That persons committed to correctional institutions of the state for whom release is available for crimes be afforded appropriate treatment to reestablish their ability to live peaceably, consistent with the protection of the community;
(2) That persons committed to correctional institutions of the state be released at the earliest possible date, consistent with public safety;
(3) To establish a just, humane and efficient corrections program; and
(4) To avoid duplication and waste of effort and money on
the part of public and private agencies.
(b) This section shall be construed in favor of public safety.
Acts, 2010 Reg. Sess., Ch. 32.
(a) The Commissioner of Corrections shall manage, direct, control and govern the following penal or correctional institutions and any others placed under his or her jurisdiction or control:
Mount Olive Correctional Complex;
Huttonsville Correctional Center;
Anthony Correctional Center;
Denmar Correctional Center;
Pruntytown Correctional Center;
Northern West Virginia Correctional Center;
St. Marys Correctional Center;
Lakin Correctional Center;
Ohio County Correctional Center;
Beckley Correctional Center;
Martinsburg Correctional Center;
Salem Correctional Center; and
Parkersburg Correctional Center.
(b) The Commissioner of Corrections may contract with the County Commission of McDowell County to house and incarcerate inmates at the Stevens Correctional Center consistent with all requirements and standards governing the Division of Corrections.
(c) Jurisdiction of and title to the West Virginia Children's Home at Elkins are hereby transferred to the Department of Health and Human Resources, which is the custodian of all deeds and other muniments of title to the property and shall record those that are susceptible of recordation to be recorded in the proper offices. Notwithstanding any provision of this code to the contrary, the West Virginia Children's Home shall be managed and controlled by a superintendent appointed by the Commissioner of the Division of Human Services.
(d) The Commissioner of Corrections may establish work and study release units as extensions and subsidiaries of those state institutions under his or her control and authority. The work and study release units may be coeducational and shall be managed, directed and controlled as provided in this article.
(e) (1) The commissioner may contract with nonprofit or charitable entities including, but not limited to, nonprofit community mental health clinics, operating half-way houses or transitional housing facilities for the placement of persons in the commissioner's custody, whether confined or under parole supervision, as long as such facilities meet standards and criteria established by the commissioner.
(2) (A) The Commissioner of Corrections may direct that a person who is placed in a half-way house or transitional housing facility under this section make reimbursement to the state in the amount of a reasonable sum calculated to offset all or part of the costs of the placement.
(B) Prior to ordering the person to make the reimbursement, the commissioner, or his or her designee, shall consider the following:
(i) The person's ability to pay;
(ii) The nature and extent of the person's responsibilities to his or her dependents, if any;
(iii) The length of probable incarceration under the court's sentence; and
(iv) The effect, if any, that reimbursement might have on the person's rehabilitation.
(f) The Division of Corrections shall provide the number of persons placed in a half-way house or a transitional housing facility pursuant to subsection (e) of this section in its report made pursuant to section twenty, article one, chapter five of this code, and shall describe its plans to use the authority provided under the provisions of subsection (e) of this section in furtherance of the duties and responsibilities imposed by this article.
(g) Any person employed by the Office of Public Institutions
is a classified civil service employee within the limits contained
in section two, article six, chapter twenty-nine of this code.
(b) For all inmates, except those serving life without mercy and those the warden determines are likely to serve the remainder of their natural lives in the custody of the Division of Corrections due to their age and the length of their sentences, the warden or administrator shall keep in an account at least ten percent of all money earned during the inmate's incarceration and pay the money to the inmate at the time of the inmate's release. The warden may authorize the inmate to withdraw money from his or her mandatory savings for the purpose of preparing the inmate for reentry into society.
(c) The Commissioner of Corrections may direct that offenders who work in community work programs, including work release inmates who have obtained employment, make reimbursement to the state toward the cost of his or her incarceration.
(d)(1) Prior to ordering an incarcerated offender to make reimbursement toward the costs of his or her incarceration, the commissioner, or his or her designee, shall consider the following:
(A) The offender's ability to pay;
(B) The nature and extent of the offender's responsibilities to his or her dependents, if any;
(C) The length of probable incarceration under the court's sentence; and
(D) The effect, if any, that reimbursement might have on the offender's rehabilitation.
(2) No order of reimbursement entered pursuant to this section may exceed $500 per month unless the offender gives his or her express consent.
(3) The Commissioner of Corrections shall, prior to the beginning of each fiscal year, prepare a report that details the average cost per inmate incurred by the division for the care and supervision of those individuals in his or her custody.
(e) The chief executive officer of any correctional institution, on request of an inmate, may expend up to one half of the money earned by the inmate on behalf of the family of the inmate if the ten percent mandatory savings has first been set aside and other fees owed by the inmate have been paid. The remainder of the money earned, after deducting amounts expended as authorized, shall be accumulated to the credit of the inmate and be paid to the inmate at times as may be prescribed by rules. The funds so accumulated on behalf of inmates shall be held by the chief executive officer of each institution under a bond approved by the Attorney General.
(f) The warden or administrator shall deliver to the inmate at the time he or she leaves the institution, or as soon as practicable after departure, all personal property, moneys and earnings then credited to the inmate, or in case of the death of the inmate before authorized release from the institution, the warden or administrator shall deliver the property to the inmate's personal representative. In case a conservator is appointed for the inmate while he or she is domiciled at the institution, the warden or administrator shall deliver to the conservator, upon proper demand, all moneys and personal property belonging to the inmate that are in the custody of the warden or administrator.
(g) If any money is credited to a former inmate after remittance of the sum of money as provided in subsection (f), the Commissioner shall notify the former inmate within thirty days of receipt of the money. The former inmate will be afforded the opportunity to collect the money if he or she pays the cost of the transaction. If the former inmate does not claim the money within thirty days of receiving the notice and the sum of money is less than $10, the Commissioner may place the money into the inmate benefit fund.
(b) There is continued a special revenue account in the State Treasury for each inmate benefit fund established by the commissioner. Moneys received by an institution for deposit in an inmate benefit fund shall be deposited with the State Treasurer to be credited to the special revenue account created for the institution's inmate benefit fund. Moneys in a special revenue account established for an inmate benefit fund may be expended by the institution for the purposes set forth in this section. Moneys to be deposited into an inmate benefit fund consist of:
(1) All profit from the exchange or commissary operation and if the commissary is operated by a vendor, whether a public or private entity, the profit is the negotiated commission paid to the Division of Corrections by the vendor;
(2) All net proceeds from vending machines used for inmate visitation;
(3) All proceeds from contracted inmate telephone commissions;
(4) Any funds that may be assigned by inmates or donated to the institution by the general public or an inmate service organization on behalf of all inmates;
(5) Any funds confiscated considered contraband; and
(6) Any unexpended balances in individual inmate trustee funds if designated by the inmate upon his or her discharge from the institution.
(c) The inmate benefit fund may only be used for the following purposes at correctional facilities:
(1) Open-house visitation functions or other nonroutine inmate functions;
(2) Holiday functions which may include decorations and gifts for children of inmates;
(3) Cable television service;
(4) Rental of video cassettes;
(5) Payment of video license;
(6) Recreational supplies, equipment or area surfacing;
(7) Reimbursement of employee wages for overtime incurred during open-house visitations and holiday functions;
(8) Postsecondary education classes;
(9) Reimbursement of a pro rata share of inmate work compensation;
(10) Household equipment and supplies in day rooms or units as approved by chief executive officers of institutions, excluding supplies used in the daily maintenance and sanitation of the unit;
(11) Christmas or other holidays gift certificates for each inmate to be used at the exchange or commissary;
(12) Any expense associated with the operation of the fund;
(13) Expenditures necessary to properly operate an automated inmate family and victim information notification system;
(14) Any expense for improvement of the facility which will benefit the inmate population that is not otherwise funded;
(15) Any expense related to the installation, operation and maintenance of the inmate telephone system; and
(16) For restitution of any negative balance on any inmate's trustee account for inmate medical copay, legal and ancillary related postage, and photocopy fees that are due the State of West Virginia, if the balance is uncollectible from an inmate after one calendar year from an inmate's release on parole or discharge date.
(d) The institution shall compile a monthly report that specifically documents inmate benefit fund receipts and expenditures and a yearly report for the previous fiscal year by September 1 of each year and submit the reports to the commissioner.
(1) There is an urgent need for vigorous enforcement of child support, restitution and other court ordered obligations;
(2) The duty of inmates to provide for the needs of dependent children, including their necessary food, clothing, shelter, education and health care should not be avoided because of where the inmate resides;
(3) A person owing a duty of child support who chooses to engage in behaviors that result in the person becoming incarcerated should not be able to avoid child support obligations; and
(4) Each sentenced inmate should be encouraged to meet his or her legitimate court-ordered financial obligations.
(b) As part of the initial classification process into a correctional facility, the Division of Corrections shall assist the inmate in developing a financial plan for meeting the inmate's child support obligations, if any exist. At subsequent program reviews, the Division shall consider the inmate's efforts to fulfill those obligations as indicative of that individual's acceptance and demonstrated level of responsibility.
(c)(1) The warden shall deduct from the earnings of each inmate, legitimate court-ordered financial obligations. The warden shall also deduct child support payments from the earnings of each inmate who has a court-ordered financial obligation. The Commissioner of the Division of Corrections shall develop a policy that outlines the formula for the distribution of the offender's income and the formula shall include a percentage deduction, not to exceed forty percent in the aggregate, for any court ordered victim restitution, court fees and child support obligations owed under a support order, including an administrative fee not to exceed one dollar, consistent with the provisions of subsection (c), section four hundred six, article fourteen, chapter forty-eight of this code, to support the Division of Correction's administration of this financial service.
(2) In the event that the inmate worker's income is subject to garnishment for child support enforcement deductions, it shall be calculated on the net wages after taxes, legal financial obligations and garnishment.
(3) The Division of Corrections shall develop the necessary administrative structure to record inmates' wages and keep records of the amount inmates pay for child support.
(4) Nothing in this section limits the authority of the Bureau for Child Support Enforcement of the Department of Health and Human Resources from taking collection action against an inmate's moneys, assets or property.
(b) Effective the first day of July, two thousand eight, the division, or its contracted medical providers, may not pay an amount to an outside provider of a medical service for a person residing in a correctional facility greater than the reimbursement rate applicable to service providers established by legislative rule of the Bureau for Medical Service within the Department of Health and Human Resources: Provided, That critical access hospitals shall be reimbursed at seventy-five percent of the billed charges. These limitations apply to all medical care services, goods, prescription drugs and medications provided to a person who is in the custody of a correctional facility and is provided these services outside of a correctional facility: Provided, however, That the Department of Military Affairs and Public Safety and the Department of Health and Human Resources effectuate an interagency agreement for the electronic processing and payment of medical services.
Consistent with the provisions of this article, the commissioner shall prescribe the duties of the persons connected with the management of institutions. When any of the guards, attendants, or other employees are uniformed, the commissioner shall prescribe the design, or designs, of the uniforms, which shall be dissimilar to the design of the uniform worn by the members of the state police. When the institution is located in, or in close proximity to, a municipality, no guard, attendant or other employee may wear the cap or caps designed by the commissioner as part of the uniform, when not actually on duty connected with his or her employment, nor shall the municipality adopt for its police officers or other employees a uniform which is similar in design to the uniform adopted by the commissioner.
Any person violating the provisions of this article is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than ten dollars, or by imprisonment for ten days, or both.
(a) The commissioner may enter into agreements to provide for the rendering of mutual aid with the political subdivisions of this state, other states and the federal government to provide for the common defense, protect the public peace, health and safety and to preserve the lives and property of the people of this state.
(b) Any agreement entered into under this section shall be with the consent and approval of the Secretary of the Department of Military Affairs and Public Safety, and shall include a provision within each agreement allowing for the immediate termination by the Secretary at any time.
The title to all property constituting or belonging to the several institutions named in section three of this article is vested in the state. The commissioner of corrections is custodian of all deeds and other muniments of title and shall cause such as are susceptible of recordation to be recorded in the proper offices. The commissioner is authorized, as lessor, to lease the West Virginia penitentiary in Moundsville, title to which is vested in the state by prior enactment of this article, for a term of not more than twenty-five years.
The commissioner of corrections is hereby authorized to house adult male criminal offenders and adult female criminal offenders as the commissioner deems necessary for the operation of a just, humane and efficient system of corrections at the facility located at Pruntytown, West Virginia, heretofore known as the West Virginia Industrial School for Boys. Henceforth, this facility shall be known as the Pruntytown Correctional Center and shall be operated according to rules and regulations promulgated by the commissioner pursuant to the provisions of section four, article thirteen, chapter sixty-two.
(b) As used in this section, a "reasonable charge" may not exceed the sum of five dollars for any billable service. Inmates shall be notified of the fee schedule, billable services, and exempt services. Services initiated by the inmate shall be assessed a fee, except that no charge may be assessed for: (1) A specific health care service required under the law of this state, including, by way of illustration, tuberculin testing; (2) an emergency service following a traumatic injury other than a self-induced injury, or necessary to prevent death or severe or permanent disability; (3) diagnosis and treatment of communicable diseases, including, by way of illustration, tuberculosis or hepatitis; (4) treatment of diagnosed severe mental illness; (5) treatment of specific chronic conditions identified by the commissioner, including heart disease and diabetes; (6) staff-initiated care, including follow-up and referral visits; (7) preventive services that the commissioner determines are to be provided or made available to all inmates, including services related to disease prevention and promotion of proper health habits; or (8) such other services as may be exempted by rule of the commissioner. No inmate may be denied any necessary billable medical service because of inability to pay the charge.
(c) Each inmate shall be afforded an opportunity at least quarterly to review all deposits into, withdrawals from and balance remaining in the inmate's trustee account during the preceding three months.
(d) The commissioner shall promulgate interpretive rules implementing this section pursuant to article three, chapter twenty-nine-a of this code prior to making any assessment under this section. The rules may establish the fee schedule and list of billable services and further define services to be exempted.
Acts, 1969 Reg. Sess., Ch. 139.
The state commissioner of public institutions shall have charge and control of the insurance of all buildings and property of the state, and shall keep the same property insured against loss by fire, by explosion of steam boilers, and the like; but the insurance of the property of the state at the seat of government shall first be authorized by the board of public works. The commissioner of public institutions shall keep a record of all such insurance, which shall show the name of each insurance company, the number, date and amount of insurance of each policy written by it, the rate of premium, the building or other property on which insurance is placed, the amount of insurance upon each building, the period for which written, the date of its expiration, and such other matters as the commissioner may deem pertinent.
Acts, 1961 Reg. Sess., Ch. 138.
The warden or administrator of each institution or correctional unit has the power to hire all assistants and employees required for the management of the institution in his or her charge; but the number of the assistants and employees, and their compensation, shall first be approved by the state commissioner of corrections. All prospective correctional employees shall pass a preemployment drug screening prior to being hired. It is the duty of the commissioner of corrections to investigate any complaint made against the warden or administrator of any institution, and also against any other officer or employee thereof, if the same has not been investigated.
(b) All employees of the Division of Corrections are responsible for enforcing rules and laws necessary for the control and management of correctional units and the maintenance of public safety that is within the scope of responsibilities of the Division of Corrections.
(c) The Commissioner of Corrections may designate correctional employees as correctional peace officers who have the authority:
(1) To detain persons for violations of state law committed on the property of any state correctional institution;
(2) To conduct investigations regarding criminal activity occurring within a correctional facility; and
(3) To execute criminal process or other process in furtherance of these duties.
(b) No person who is not an officer or employee of the division of corrections may falsely represent himself or herself to be an officer or employee of the division of corrections or to be under the order or direction of any officer or employee of the division.
(c) Any person who violates the provisions of subsection (a) or (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars, or confined in the county or regional jail for not more than six months, or both fined and confined.
Acts, 1969 Reg. Sess., Ch. 139.
The commissioner is hereby authorized to establish a furlough program for inmates under his control and custody. Such program may provide that selected inmates be permitted to reside outside an institution operated by the department of corrections under legislative rules promulgated by the commissioner pursuant to chapter twenty-nine-a of this code.
All fees collected shall be deposited in a special account in the state treasury designated the "electronic monitoring program account." The funds deposited in the account may be used by the commissioner only for the operation of the program and for the administration of the division of corrections.
"Electronic monitoring equipment" means an electronic device or apparatus approved by the division of corrections which is capable of recording or transmitting information regarding the offender's presence or nonpresence in a designated area. The device shall be minimally intrusive. Except to the extent provided in this section, the division of corrections shall not approve any monitoring device which is capable of recording or transmitting (i) visual images, except for that of a still image of the offender that can only be transmitted by the offender triggering the monitoring system, or (ii) information as to the offender's activities while he or she is within the designated area. A monitoring device may transmit information regarding blood alcohol levels. The monitoring device shall not be used to eavesdrop or record any conversation: Provided, That conversations between the offender and the person supervising the offender may be recorded solely for purpose of voice identification.
(a) The Commissioner of Corrections may establish diagnostic and classification divisions.
(b) Notwithstanding any provision of this code to the
contrary, all persons committed to the custody of the Commissioner
of the Division of Corrections for presentence diagnosis and
classification and all persons sentenced to the custody of the
Division of Corrections shall, upon transfer to the Division of
Corrections, undergo diagnosis and classification, which shall
include: (1) Assessments of a person's criminogenic risk and need
factors that are reliable, validated and normed for a specific
population and responsive to cultural and gender-specific needs as
well as individual learning styles and temperament; (2) application
of a mental health preliminary screen; and (3) if the mental health
preliminary screen suggests the need for further assessment, a full
psychological evaluation. The Division of Corrections shall
perform mental health preliminary screens, appraisals and
evaluations according to standards provided by the American
Whenever an inmate committed to the custody of corrections becomes mentally ill and his or her needs cannot be properly met within the correctional facility, the commissioner shall proceed in accordance with section thirty-one, article five, chapter twenty-eight of this code.
Whenever an inmate committed to the custody of corrections needs medical attention, other than mental health care, not available at said prison, the warden or administrator of said correctional facility shall immediately notify the Commissioner of Corrections who, after proper investigation, shall cause the transfer of said inmate to a facility properly equipped to render the medical attention necessary. Such inmate, while receiving treatment in said hospital, shall be under an appropriate level of supervision at all times and shall forthwith be returned to his or her correctional facility upon release from said facility
In providing or arranging for the necessary medical and other care and treatment of a pregnant inmate, the warden or administrator of the correctional facility shall take reasonable measures to assure that pregnant inmates will not be restrained after reaching the second trimester of pregnancy until the end of the pregnancy: Provided, That if the inmate, based upon her classification, discipline history, or other factors deemed relevant by the warden or administrator poses a threat of escape, or to the safety of herself, the public, staff or the fetus, the inmate may be restrained in a manner reasonably necessary: Provided, however, That prior to directing the application of restraints and where there is no threat to the safety of the inmate, the public, staff or the fetus, the warden, administrator or designee shall consult with an appropriate health care professional to assure that the manner of restraint will not pose an unreasonable risk of harm to the inmate or the fetus.
If a treaty in effect between the United States and a foreign country provides for the transfer or exchange of convicted offenders to the country of which they are citizens or nationals, the governor may, on behalf of the state and subject to the terms of the treaty and with the consent of the offender, authorize the commissioner of corrections to consent to the transfer or exchange of inmates in his or her custody and take any other action necessary to initiate the participation of this state in the treaty. No transfer may occur pursuant to the provisions of this section until the inmate is informed of his or her rights and the procedures involved in his or her native language unless it is determined that the inmate's knowledge of English is sufficient.
(1) All adult inmates of state correctional institutions shall be notified in writing that their telephone conversations may be monitored, intercepted, recorded and disclosed;
(2) Only the commissioner, warden, administrator or their designee shall have access to recordings of inmates' telephone calls unless disclosed pursuant to subdivision (4) of this subsection;
(3) Notice shall be prominently placed on or immediately near every telephone that may be monitored;
(4) The contents of inmates' telephone calls may be disclosed to an appropriate law-enforcement agency pursuant to an order of a court or administrative tribunal when disclosure is necessary for the investigation, prevention or prosecution of a crime or to safeguard the orderly operation of the correctional institution. Disclosure may be made in civil or administrative proceedings pursuant to an order of a court or an administrative tribunal when the disclosure is:
(A) Necessary to safeguard and protect the orderly operation of the correctional institution; or
(B) Necessary to protect persons from physical harm or the threat of physical harm;
(5) All recordings of telephone calls shall be retained for at least three years and maintained and destroyed in accordance with the record retention policy of the Division of Corrections adopted pursuant to section one, article eight, chapter five-a of this code, et seq.; or
(6) To safeguard the sanctity of the attorney-client privilege, a telephone line that is not monitored shall be made available for telephone calls to or from an attorney. These calls shall not be monitored, intercepted, recorded or disclosed in any matter.
(b) The commissioner shall propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.
(c) The provisions of this section shall apply only to those persons serving a sentence of incarceration in the custody of the Commissioner of Corrections.
(1) All adult inmates of state correctional institutions shall be notified in writing that their mail may be monitored, opened, reviewed, copied and disclosed;
(2) Only the commissioner and his or her designee shall have access to copies of inmates' mail unless disclosed pursuant to subdivision (4) of this subsection;
(3) Notice that the mail may be monitored shall be prominently placed on or immediately near every mail receptacle or other designated area for the collection or delivery of mail;
(4) The contents of inmates' mail may be disclosed to an appropriate law-enforcement agency pursuant to an order of a court or administrative tribunal when disclosure is necessary for the investigation, prevention or prosecution of a crime or to safeguard the orderly operation of the correctional institution. Disclosure may be made in civil or administrative proceedings pursuant to an order of a court or administrative tribunal when the disclosure is:
(A) Necessary to safeguard and protect the orderly operation of the correctional institution; or
(B) Necessary to protect persons from physical harm or the threat of physical harm;
(5) All copies of mail shall be retained for at least three years and maintained and destroyed in accordance with the records retention policy of the Division of Corrections adopted pursuant to section one, article eight, chapter five-a of this code, et seq.; or
(6) The inmate whose mail has been copied and disclosed under this section shall be given a copy of all such mail when it is determined by the commissioner, warden or administrator not to jeopardize the safe and secure operation of the facility or to be detrimental to an ongoing investigation or administrative action.
(b) To safeguard the sanctity of the attorney-client privilege, mail to or from an inmate's attorney shall not be monitored, reviewed, copied or disclosed in any manner unless required by an order of a court of competent jurisdiction. However, such mail may be checked for weapons, drugs and other contraband provided it is done in the presence of the inmate and there is a reasonable basis to believe that any weapon, drug or other contraband exists in the mail.
(c) All inmates' outgoing mail must be clearly identified as being sent from an inmate at a state correctional institution and must include on the face of the envelope the name and full address of the institution.
(d) The Commissioner of Corrections or his or her designee is authorized to open, monitor, review, copy and disclose an inmate's outgoing mail in accordance with the provisions of subsection (a) of this section.
(e) The commissioner shall propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.
(f) The provisions of this section shall apply only to those persons serving a sentence of incarceration in the custody of the Commissioner of Corrections.
(a) Notwithstanding any provisions of this code to the contrary, any person not a temporary or probationary employee employed at the West Virginia penitentiary at Moundsville at the time of its closing shall be afforded the opportunity to transfer duty stations to the West Virginia penitentiary at Mount Olive, the West Virginia medium security prison at Huttonsville or the northern regional jail and correctional complex at Moundsville if he or she is an employee in good standing at the time the facility is closed. Any person so transferred shall retain his or her rank or classified service classification, salary and benefits. The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code, to effectuate notice and procedures for said transfers: Provided, That the commissioner shall have the authority to, upon consideration of an employee's age and length of service, direct an employee's transfer to one of the three facilities based on staff requirements.
(b) The commissioner shall, within thirty days of the closing of the West Virginia penitentiary at Moundsville, establish and maintain, for a period of two years, a list of all correctional officers who are eligible for transfer pursuant to subsection (a) of this section and who wish to remain eligible for a two-year period for transfer to the Mount Olive correctional complex, or the Huttonsville correctional center or the northern jail and correctional complex at Moundsville. The commissioner shall give priority to any person on the list for employment in an available position equivalent to the position that person held at the penitentiary unless the commissioner determines that that person is physically or mentally unfit for the employment: Provided, That the commissioner has the authority to transfer a correctional officer to any of the three facilities based upon his or her determination of staff requirements.
(b) The task force consists of the following members:
(1) The Secretary of the Department of Military Affairs and Public Safety, or his or her designee;
(2) The Commissioner of the Division of Corrections, or his or her designee;
(3) The Secretary of the Department of Health and Human Resources, or his or her designee;
(4) The Commissioner of the Bureau for Behavioral Health and Health Facilities, or his or her designee; and
(5) The Director of the Division of Criminal Justice Services, or his or her designee.
(c) The task force shall designate the chair of the task force.
(d) The Legislature directs the task force to:
(1) Study whether sex offenders can be treated and rehabilitated;
(2) Study the feasibility and cost effectiveness of operating a separate correctional facility for the incarceration and treatment of sex offenders;
(3) Study the findings and recommendations from relevant national advisory committees, federal agencies, and peer-reviewed medical, correctional, and legal literature; and
(4) Identify and recommend alternatives to establishing a separate facility, if a separate facility is not feasible and cost effective.
(e) The task force may conduct inquiries and hold hearings in furtherance of its objectives and in order to provide utilities subject to its jurisdiction and other interested persons the opportunity to comment.
(f) All actual and necessary travel expenses of the members of the task force shall be reimbursed by the member's employing agency. All other expenses incurred by the task force shall be paid by the Division of Corrections.
(g) The task force shall make its final report to the Governor and the Legislature regarding its findings and recommendations not later than the first day of July, two thousand seven.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
Acts, 1969 Reg. Sess., Ch. 139.
(a) "Civil action" means any action or appeal from an action filed by any current or former inmate or his or her personal representative with respect to conditions of confinement, including, but not limited to, petitions for extraordinary writs, civil actions under 42 U.S.C. §1983 and other federal and state laws and negligence actions. Actions that exclusively concern an inmate's sentence or conviction are not subject to the requirements of this article.
(b) "Correctional facility" means any county jail, regional jail or any facility operated by the division of corrections, the West Virginia regional jail and correctional facility authority or division of juvenile services for the confinement of inmates.
(c) "Inmate" means any person confined in a correctional facility who is accused of, convicted of, sentenced for or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release or a diversionary program.
(a) As used in this section, an "ordinary administrative remedy" is a formal administrative process by which an inmate submits a grievance seeking redress or presenting concerns regarding any general or particular aspect of prison life which does not involve violence, sexual assault or sexual abuse against an inmate. An ordinary administrative remedy includes, but is not limited to, complaints concerning food quality, health care, appeals of prison discipline, physical plant, classification, staff treatment or some other alleged wrong.
(b) The Commissioner of the Division of Corrections and the Executive Director of the Regional Jail Authority are authorized to establish procedures for ordinary administrative remedies according to their respective authority for issuance of policies governing the conduct of inmates.
(c) An inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.
(d) An ordinary administrative remedy is considered exhausted when the inmate's grievance complies with duly promulgated rules and regulations regarding inmate grievance procedures, has been accepted, fully appealed and has received a final decision from the Commissioner of Corrections or the Commissioner's designee, or the Executive Director of the Regional Jail Authority, or the director's designee.
(e) The agency shall issue a final decision regarding an
ordinary administrative remedy no later than sixty days from the
date the inmate filed his or her initial grievance. Computation of
the sixty-day time period shall not include time consumed by
inmates in preparing any administrative appeal. The agency may
claim an extension of time to issue a final decision regarding an
ordinary administrative remedy of up to thirty days if the sixty
day final decision time frame is insufficient to make an
appropriate decision, except in cases involving a threat to health,
life or safety of the prisoner. The agency shall notify the inmate
in writing of any such extension and provide a date by which the
final decision regarding an ordinary administrative remedy will be
(a) The agency shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident involving sexual assault or sexual abuse against an inmate. For purposes of this article, "sexual assault" or "sexual abuse" means any offense which would constitute a violation of article eight-b, chapter sixty-one of this code. The agency shall ensure that:
(1) An inmate who alleges an incident involving sexual assault or sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint; and,
(2) Such grievance may not be referred to a staff member who is the subject of the complaint.
(b) The agency shall issue a final agency decision on the merits of any portion of a grievance within sixty days of the initial filing of the grievance. Computation of the sixty-day time period shall not include time consumed by inmates in preparing any administrative appeal. The agency may claim an extension of time to respond, of up to thirty days, if the normal time period for response is insufficient to make an appropriate decision, except in cases involving threat to health, life or safety of the prisoner. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.
(c) At any level of the administrative process, including the final level, if the inmate does not receive a response within the time allotted for reply, including any properly noticed extension, the inmate may consider the absence of a response to be a denial at that level.
(d) Third parties, including fellow inmates, staff members, family members, attorneys and outside advocates, shall be permitted to assist inmates in filing requests for administrative remedies relating to incidents involving sexual assault or sexual abuse, and shall also be permitted to file such requests on behalf of inmates. If a third party files such a request on behalf of an inmate, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process. If the inmate declines to have the request processed on his or her behalf, the agency shall document the inmate's decision.
(e) After receiving an emergency grievance alleging an inmate is subject to a substantial risk of sexual assault or sexual abuse, the agency shall immediately forward the grievance, or any portion thereof that alleges the substantial risk of sexual assault or sexual abuse, to a level of review at which immediate corrective action may be taken, shall provide an initial response within forty-eight hours, and shall issue a final agency decision within five calendar days. The initial response and final agency decision shall document the agency's determination whether the inmate is in substantial risk of sexual assault or sexual abuse and the action taken in response to the emergency grievance.
(f) The agency shall establish procedures for processing an inmate grievance which alleges imminent violence. The commissioner and the executive director shall, by December 31, 2013, propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to meet the requirements of this subsection.
(g) An administrative remedy for an allegation of violence, sexual assault or sexual abuse against an inmate is considered exhausted when the inmate's grievance has complied with duly promulgated rules and regulations regarding inmate grievance procedures for imminent violence, sexual assault or sexual abuse, has been accepted, fully appealed and has received a final decision from the Commissioner of Corrections or the Commissioner's designee, or the Executive Director of the Regional Jail Authority, or the director's designee.
(h) The agency may discipline an inmate for filing a grievance related to sexual assault or sexual abuse only where the agency demonstrates that the inmate filed the grievance in bad faith.
(i) Notwithstanding any other provision of this code, no
inmate shall be prevented from filing an appeal of his or her
conviction or from bringing a civil or criminal action alleging
violence, sexual assault or sexual abuse, after exhaustion of
administrative remedies. If such a civil or criminal action is ultimately dismissed by a judge as frivolous, then the inmate shall
pay the filing costs associated with the civil or criminal action
as provided for in this article.
(b) When an inmate seeks to file a civil action as an indigent and requests that customary filing fees and court costs be waived, the clerk of the court in which the inmate has filed his or her complaint shall notify the warden or designated representative of the facility in which the inmate resides of the inmate's request and the amount of filing costs. Once the facility receives notification, the custodian of the inmate's trust account shall immediately compute the average monthly balance of the inmate's trust account over the preceding three-month period and deduct from the inmate's trust account thirty percent of the average balance as a partial filing fee. The custodian shall deduct that same amount or up to thirty percent of the balance of the inmate's trust account, whichever is greater, on a monthly basis until the filing fee is paid in full.
(c) The custodian of the inmate's trust account shall place all funds deducted from the inmate's trust into a special account designated as the "filing fees account," to be established for each correctional facility and to be administered by the custodian and warden or chief administrator of each facility. Biannually the custodian and warden or chief administrator of the filing fees account shall distribute the balance of the account, minus any expense in maintaining that account, to the circuit clerk of the county in which the state correctional facility resides as a filing fee for all suits filed by indigent inmates of that facility.
(b) A civil action is frivolous or malicious if it:
(1) Has no arguable basis in fact or law; or
(2) Is substantially similar to a previous civil action in which the inmate did not substantially prevail, either in that it is brought against the same parties or in that the civil action arises from the same operative facts of a previous civil action; or
(3) Has been brought with the intent to harass an opposing party.
(b) Subject to the agreement of the official with custody over an inmate, the court may conduct hearings at the correctional facility in which an inmate is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference or other communications technology in any hearing held at the facility.
(c) No court may compel the commissioner of the division of corrections or warden of any correctional facility operated by the division of corrections or the executive director of the West Virginia regional jail and correctional facility authority or any administrator of any facility operated by the West Virginia regional jail and correctional facility authority to transport to court any inmate having a maximum security classification if the warden or administrator of the facility tenders to the court an affidavit attesting to the custody level of the inmate and stating that, in the warden's or administrator's opinion, the inmate possesses a substantial risk of escape if transported. If a warden or administrator files an affidavit, then the warden or administrator shall, upon demand of the court, provide suitable room to conduct any trial or hearings at which an inmate's presence is required. The warden or administrator shall allow the court, counsel and all court personnel access to the correctional facility to conduct the proceedings the court considers necessary.
(1) The fees were directly and reasonably incurred by an attorney in proving an actual violation of prisoner's rights protected by the constitution or statute; and
(2) The amount of the fees is proportionately related to the court-ordered relief for the violation, or the fees were directly and reasonably incurred in enforcing the relief ordered for the violation.
(b) Nothing in this section shall prohibit a prisoner from entering into an agreement to pay an attorney fee in excess of the amount authorized in this section, if the fee is paid by the prisoner rather than by another party to a civil action.
(b) As used in this article:
(1) "Correctional Center Nursery Program" means the program authorized by this article.
(2) "Public assistance" means all forms of assistance, including monetary assistance from any public source paid either to the mother or child or any other person on behalf of the child.
(3) "Support" means the payment of money, including interest:
(A) For a child or spouse ordered by a court of competent jurisdiction, whether the payment is ordered in an emergency, temporary, permanent or modified order, the amount of unpaid support shall bear simple interest from the date it accrued, at a rate of ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time;
(B) To third parties on behalf of a child or spouse, including, but not limited to, payments to medical, dental or educational providers, payments to insurers for health and hospitalization insurance, payments of residential rent or mortgage payments, payments on an automobile or payments for day care; or
(C) For a mother, ordered by a court of competent jurisdiction, for the necessary expenses incurred by or for the mother in connection with her confinement or of other expenses in connection with the pregnancy of the mother.
(4) "Support order" means an award of support by order of a court of competent jurisdiction.
(1) Comply with any educational, counseling or other requirements established for the program by the Division of Corrections;
(2) If eligible, have the child participate in the Medicaid program or a health insurance program;
(3) Accept the normal risks of child bearing;
(4) Abide by any court decisions regarding the allocation of parental rights and responsibilities with respect to the child;
(5) Assign to the division any rights to support from any other person; and
(6) Specify with whom the child is to be placed in the event the inmate's participation in the program is terminated for a reason other than release from imprisonment.
(a) The inmate fails to comply with the agreement entered into under section three of this article;
(b) The inmate's child becomes seriously ill, cannot meet medical criteria established by the division for the program or otherwise cannot safely participate in the program;
(c) A court of competent jurisdiction issues an order that designates a person other than the inmate as the child's custodial parent and legal custodian;
(d) A court of competent jurisdiction grants custody of the child to a person other than the inmate;
(e) An order is issued granting shared parenting of the child;
(f) An order regarding the child is issued granting temporary, permanent, or legal custody of the child to a person other than the inmate, or to a public children services agency or private child placing agency; or
(g) The inmate is released from imprisonment.
(b) The division may receive the following:
(1) Money that is assigned or donated on behalf of, and public assistance provided to, a specific inmate or child participating in the Correctional Center Nursery Program; and
(2) Money or other property assigned or donated to establish and maintain the Correctional Center Nursery Program.
(c) Ten percent of the moneys described in this section shall be placed in the mandatory savings account of the mother for whom the money was received. The remaining moneys shall be used for items not covered by other program funds.
Acts, 1935 Reg. Sess., Ch. 76.
Acts, 1969 Reg. Sess., Ch. 139.
At each center the warden shall administer programming which shall include the following components:
(1) A work program;
(2) An educational program in accordance with section thirteen-f, article two, chapter eighteen of this code;
(3) A recreational program; and
(4) A counseling program with an emphasis on substance abuse and life skills.
Acts, 1999 Reg. Sess., Ch. 64.
If, in the opinion of the warden, the young adult offender is an unfit person to remain in the center, the offender shall be returned to the committing court to be dealt with further according to law. The offender is entitled to a hearing before the committing court to review the warden's determination. The standard for review is whether the warden, considering the offender's overall record at the center and the offender's compliance with the center's rules, policies, procedures, programs and services, abused his or her discretion in determining that the offender is an unfit person to remain in the center. At the hearing before the committing court, the state need not offer independent proof of the offender's disciplinary infractions contained in the record of the center when opportunity for an administrative hearing on those infractions was previously made available at the institution. If the court upholds the warden's determination, the court may sentence the offender for the crime for which the offender was convicted. In his or her discretion, the judge may allow the defendant credit on the sentence for time the offender spent in the center.
A young adult offender shall be returned to the jurisdiction
of the court which originally committed the offender when, in the
opinion of the warden, the young adult offender has satisfactorily
completed the center training program. The offender is then
eligible for probation for the offense the offender was convicted
of or plead guilty to and the judge of the court shall immediately
place the offender on probation. If the court finds there is
reasonable cause to believe that the offender has engaged in new
criminal conduct between his or her release from the center and the sentencing hearing for the crime for which the offender was ordered
to the center, the judge may sentence the offender for the crime
for which the offender was first convicted, with credit for the
time spent at the center. In the event the offender's probation is
subsequently revoked, the judge shall impose the sentence the young
adult offender would have originally received had the offender not
been committed to the center and subsequently placed on probation.
The court shall, however, give the offender credit on his or her
sentence for the time spent in the center.
(b) Any person who willfully permits or aids any inmate of such center to escape therefrom or conceals him with the intent of enabling him to elude pursuit is guilty of a felony and, upon conviction thereof, shall be committed to the custody of the commissioner of corrections for not more than five years.
The West Virginia commissioner of public institutions may establish centers independently or in cooperation with the natural resources commission of West Virginia on such terms as may be agreed upon by the commissioner of public institutions and the director of the department of natural resources.
This article shall be known as "The Private Prison Enabling and Contracting Act."
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.
As used in this article, unless the context clearly requires a different meaning, the term:
(a) "Commissioner" means the commissioner of the division of corrections.
(b) "Contracting agency" means the appropriate governmental agency with the authority to enter into a contract with a prison vendor for correctional services. A contracting agency shall include, but not be limited to, the state of West Virginia and its political subdivisions, the federal government, any federal agency, one or more of the remaining United States, or a political subdivision of one or more of the remaining United States.
(c) "Correctional services" means the following functions, services and activities, when provided within a prison or otherwise:
(1) Design and modification or construction of prison facilities;
(2) Education, training and jobs programs;
(3) Development and implementation of systems for the classification of inmates and management information systems or other information systems or services;
(4) Food services, commissary, medical services, transportation, sanitation or other ancillary services;
(5) Counseling, special treatment programs or other programs for special needs;
(6) Recreational, religious or other activities; and
(7) Operation of correctional facilities, including management, custody of inmates, and providing security.
(d) "Division" means the division of corrections of the department of public safety of West Virginia.
(e) "Foreign" in the context of a foreign state or other unit of government means any state or political subdivision or the District of Columbia or the federal government or a federal agency other than the state of West Virginia and its political subdivisions.
(f) "Inmate" means an individual sentenced to incarceration by a court or contracting agency.
(g) "Prison contractor" or "contractor" or "prison vendor" means any individual, partnership, corporation, unincorporated association or any other nongovernmental entity which is licensed to do business in the state of West Virginia and which has or will enter into a contractual agreement with a contracting agency to provide correctional services.
(h) "Prison" or "prison facility" or "facility" means any minimum or medium or maximum adult correctional institution operated under the authority of the division or of a political subdivision of this state, whether obtained by purchase, lease, construction, reconstruction, restoration, improvement, alteration, repair, or other means.
(i) "Private correctional officer" means any full-time or part-time employee of a prison vendor whose primary responsibility is the supervision, protection, care and control of inmates within a private correctional facility.
(j) "Regional jail authority" means the West Virginia regional jail and correctional facility authority created by article twenty, chapter thirty-one of this code.
(k) "Secretary" means the secretary of the department of public safety.
(l) "State" means the state of West Virginia.
(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 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.
(c) 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) 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.
(e) 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) 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.
(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 sentenced to a term of incarceration by a foreign court.
A contracting agency of this state, its political subdivisions or their designee may contract with a prison contractor for the construction, lease, acquisition, improvement, operation, and management of correctional facilities and services.
A private contractor upon the approval of the secretary and the regional jail authority may contract for correctional services with foreign contracting agencies provided such contract meets the minimal requirements contained in section nine of this article. Upon approval the facility may receive inmates sentenced to confinement by a foreign authority.
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 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. 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.
Contracts awarded under the provisions of this article shall:
(1) Provide for internal and perimeter security to protect the public, staff members and inmates.
(2) Impose discipline on inmates only in accordance with the rules promulgated by the commissioner.
(3) Provide for proper food, clothing, housing, and medical care for inmates.
(4) Require that a contractor shall adhere to the rules promulgated by the commissioner.
(5) Require that the contractor and the contracting agency shall indemnify, defend and hold harmless the state, its agencies, political subdivisions, and the employees and other contractors of the state, its agencies and political subdivisions from any claim or cause of action which arises from any act or omission by the contractor or any of the contractor's employees or subcontractors.
(6) Require the contractor to indemnify the state or its political subdivisions for any moneys the state or its political subdivisions may expend for claims against the state or its political subdivisions pursuant to section seventeen of this article.
(7) Require a foreign contracting agency to transport an inmate back to the contracting agency's state for parole, furlough or release.
(a) The facility shall be staffed at all times. The staffing pattern shall be adequate 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 health codes.
(e) If any of the requirements of subsection (d) of this section have not been complied with, the commissioner may 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 (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 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 conferencewith 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, 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, 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.
(a) The commissioner shall 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 any and all data, reports, and other materials that the commissioner determines are necessary to carry out inspections pursuant to this article.
(b) The contractor shall reimburse the division of corrections for expenses incurred for inspections. Such reimbursement shall be payable to the division of corrections.
(c) 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 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.
The sovereign immunity of the state shall not extend to the contractor or its insurer.
(a) No contract for correctional services may authorize, allow or imply a delegation of the authority or responsibility of the contracting agency to a prison contractor for any of the following:
(1) Developing or implementing procedures for calculating inmate release and parole eligibility dates;
(2) Developing or implementing procedures for calculating and awarding good time;
(3) Approving inmates for work release;
(4) Approving the type of work inmates may perform and the wages or good time, if any, which may be given to inmates engaging in such work;
(5) Granting, denying or revoking good time; and
(6) Recommending that the contracting state's parole authority either deny or grant parole, although the contractor may submit written reports that have been prepared in the ordinary course of business.
(b) Notwithstanding the provisions of subsection (a) of this section, the contractor may use inmates for community service upon the request and approval of the political subdivision where the prison is located.
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 hundred thousand dollars. The bond shall be conditioned on the contractor performing all the requirements of this article and the rules promulgated hereunder.
(a) The contractor shall provide an adequate policy of insurance specifically including insurance for civil rights claims as determined by a risk management or actuarial firm with demonstrated experience in public liability for state governments. In determining the adequacy of the policy, such risk management or actuarial firm shall determine whether:
(1) The insurance is adequate to protect the state, its political subdivisions or other contracting agencies from actions by a third party against the contractor;
(2) The insurance is adequate to protect the state, its political subdivisions or contracting agencies against claims arising as a result of any occurrence; and
(3) The insurance is adequate to satisfy other requirements specified by the risk management or actuarial firm.
(b) The insurance contract shall contain a provision that the state, its political subdivisions and contracting agencies are named insureds, and that the state, its political subdivisions and contracting agencies shall be sent any notice of cancellation.
(c) The contractor shall not self-insure.
A contractor which has been approved to operate a facility pursuant to this article shall indemnify, defend and hold harmless the state, its officers, agents, and employees, and any local government entity in the state having jurisdiction over the facility or ownership of the facility from:
(1) Any claims or losses for services rendered by the contractor or person performing or supplying services in connection with the performance of the contract;
(2) Any claims or losses to any person injured or damaged by the willful or negligent acts of the contractor, its officers or employees in the operation of a private prison or in the performance of the contract;
(3) Any claims or losses resulting to any person injured or damaged by the private contractor, its officers or employees by the publication, translation, reproduction, delivery, performance, use or disposition of any data processed under the contract in a manner not authorized by the contract, or by federal or state regulations or statutes;
(4) Any failure of the contractor, its officers or employees to adhere to West Virginia laws, including, but not limited to, labor laws and minimum wage laws;
(5) Any constitutional, federal, state or civil rights claim brought against the state related to the prison facility;
(6) Any claims, losses, demands or causes of action arising out of the contractor's activities in this state; and
(7) Any attorney's fees or court costs arising from any habeas corpus actions or other inmate suits which may arise, including, but not limited to, attorney's fees for the state's representation as well as for any court appointed representation of any inmate as well as the costs of any special judge who may be appointed to hear such actions.
(a) Private correctional officers of a private contractor shall be authorized to carry and use firearms in the course of their employment only after completing a training course, approved by the commissioner, in the use of firearms in accordance with rules promulgated by the division.
(b) Upon notification by the contractor of an escape from the facility or a disturbance at the facility, the state shall use all reasonable means to recapture escapees or quell any disturbance.
(c) When acting within the scope of their normal employment at the private prison facility, nonresident private correctional officers shall be deemed residents for purposes of section eleven, article six, chapter sixty-one of this code.
(a) All employees of a facility operated pursuant to this article shall receive training in a program approved by the commissioner. All 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.
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 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.
The purpose of this article is to establish a program of boot camps that will encourage boot camp inmates to become responsible, productive citizens by providing academic education, social skills, education, physical wellness program, self-discipline programs, substance abuse treatment and vocational education and counseling. It is the aim of the Legislature that such a program will create a more positive environment for both inmates and correctional employees who operate the boot camp; and that will reduce the recidivism rate of persons so incarcerated.
The commissioner of the division of corrections is hereby authorized to establish a program of boot camps that may be used for eligible offenders who are sentenced to serve a term of imprisonment under the custody of the commissioner of corrections and whom the commissioner or the circuit court may permit to serve his or her sentence as a sentence to boot camp in accordance with this article.
As used in this article, unless the context clearly requires a different meaning, the term:
(a) "Commissioner" means the commissioner of the division of corrections;
(b) "Division" means division of corrections; and
(c) "Eligible offender" means eligible offender as defined in section four of this article.
(a) Appropriate inmates may participate in the boot camp program in accordance with the following criteria:
(1) One who is not less than eighteen years of age nor more than twenty-eight years of age;
(2) One who is medically, physically and psychologically fit to participate in the program;
(3) One who volunteers for the program;
(4) One who has been convicted of a felony and has been sentenced to the custody of the commissioner of corrections for a period of incarceration of not less than one year;
(5) One who was not convicted of murder in the first degree or murder in the second degree;
(6) One who was not convicted of kidnapping;
(7) One who was not convicted of first or second degree sexual assault;
(8) One who was not convicted of any offense pursuant to article eight-d, chapter sixty-one of this code;
(9) One who was not convicted of incest;
(10) One who has not been previously convicted of a felony; and
(11) Such other criteria as the commissioner of the division of corrections may promulgate pursuant to chapter twenty-nine-a of this code.
(b) The circuit court of conviction may direct that a person be admitted or excluded from participation in the state boot camp program. The commissioner, pursuant to operational policies and procedures, may in his discretion, direct placement of an inmate in a boot camp program.
(c) Any placement in the boot camp shall be subject to the extent funding is available or appropriated and subject to the availability of space in the boot camp: Provided, That nothing in this section shall give any court the power to hold the division of corrections or any officer or employee of the division in contempt of court for failure to adhere to a circuit court directive that a person be placed in the state boot camp program if space or funding is unavailable.
(1) A period of imprisonment at the boot camp of not more than twelve months which period of imprisonment shall consist of a military style combination of discipline, physical training and physical labor, substance abuse education, employment skills training, social skills training, and psychological evaluation and treatment. Additionally, the state board of education and state superintendent of schools, pursuant to section five, article twenty, chapter eighteen of this code, respectively, may, as funds are available, establish an education program for those eligible offenders who are not recipients of a high school diploma or a certificate of high school equivalence.
(2) Upon successful completion of the boot camp program, and notwithstanding any other provisions for determining parole eligibility, an inmate shall be released on parole in accordance with this article. Except as otherwise provided in this article, a release on parole under this section shall require that the eligible offender be under intensive supervision by the adult parole authority and may provide for supervision of the offender by the adult parole authority subsequent to the expiration of his or her period of boot camp incarceration under any terms and for any period of time prescribed by the provisions of article twelve, chapter sixty-two of this code.
(b) The policies and procedures for the boot camp program also shall include, but are not limited to, all of the following:
(1) Policies and procedures identifying the facilities under the control and authority of the division of corrections designated by the commissioner of corrections that will be used for prisoners serving a sentence to boot camp;
(2) Policies and procedures governing academic education, or psychological testing and evaluation, discipline, physical training and labor for eligible offenders serving a sentence to boot camp based upon the offender's physical conditions and needs: Provided, That the education program shall be administered by the state board of education and state superintendent of schools in accordance with section thirteen-f, article two, chapter eighteen and section five, article twenty, chapter eighteen of this code, respectively;
(3) Policies and procedures establishing additional criteria the commissioner deems necessary to determine the eligibility of offenders to serve their sentence as a sentence to boot camp;
(4) Policies and procedures establishing a method of intensive supervision for an eligible offender who is released on parole of the type described in this section for the remainder of his or her parole sentence, and rules governing the supervision of the offender subsequent to the expiration of his or her parole sentence;
(5) Policies and procedures to effectuate notification to sentencing courts of the performance of eligible offenders serving their sentence of imprisonment as a sentence to boot camp;
(6) Any other policies and procedures that are necessary for the proper operation of the program.
(c) An eligible offender who does not satisfactorily complete the entire period of boot camp incarceration, he or she shall be removed from the program of boot camp and shall be required to serve the remainder of the original sentence of imprisonment which would have been available to the sentencing court had boot camp not been directed by the circuit court or allowed by the commissioner.
(d) If the circuit court directs or the division permits an eligible offender to serve his or her sentence of imprisonment as a sentence to boot camp, the eligible offender shall commence a period of parole of the type described in this article. If an eligible offender violates the conditions of parole, he or she maybe declared a parole violator and his or her parole shall be subject to revocation pursuant to the provision of article twelve, chapter sixty-two of this code.
(b) The boot camp program shall be subject to termination and sunset, after conduct of performance audit thereon, pursuant to the provisions of article ten, chapter four of this code, five years after the effective date of the creation thereof, together with allowance for subsequent periods applicable to the winding up of the affairs of such boot camp program. The performance audit shall be filed with the president of the Senate and the speaker of the House of Delegates. The performance audit required by this section shall contain all of the following:
(1) A summary of the program as initially established, a summary of all changes in the program made during the period covered by the audit and the reasons for the changes, and a summary of the program as it exists on the date of the preparation of the audit;
(2) A summary of the effectiveness of the program;
(3) An analysis of the total cost of the program, of its cost per inmate who was permitted to serve a sentence to boot camp and who served the entire sentence to boot camp, and of its cost per inmate who was permitted to serve a sentence to boot camp;
(4) A summary of the standards and criteria used by the division of corrections in determining which eligible offenders were permitted to serve their sentence of imprisonment as a sentence to boot camp;
(5) A summary of the characteristics of the eligible offenders who were permitted to serve their sentence of imprisonment as a sentence to boot camp, which summary shall include, but not be limited to, a listing of every offense of which any such eligible offender was convicted or to which any such eligible offender pleaded guilty and in relation to which he or she served a sentence to boot camp, and the total number of such eligible offenders who were convicted of or pleaded guilty to each such offense;
(6) A listing of the number of eligible offenders who were permitted to serve a sentence to boot camp and who did not serve the entire sentence to boot camp, and, to the extent possible, a summary of the length of the terms of imprisonment served by such eligible offenders after they were removed from the program;
(7) A summary of the effect of the program on overcrowding at correctional facilities under the control and authority of the division of corrections;
(8) To the extent possible, an analysis of the rate of the recidivism of eligible offenders who were permitted to serve a sentence to boot camp and who served the entire sentence to boot camp;
(9) Recommendations as to legislative changes to the program that would assist in its operation or that could further alleviate overcrowding at correctional facilities, and recommendations as to whether the program should be expanded.
This article shall be liberally construed to accomplish the intent and purposes of the Legislature in adopting it and shall be the sole authority required for the accomplishment of the purposes set forth in this article.
(a) To provide more adequate, regular and suitable employment for the inmates and confined juvenile or youthful offenders of this state;
(b) To use the labor of inmates and confined juvenile or youthful offenders for self-maintenance and to reimburse this state for expenses incurred by reason of their crimes and confinement;
(c) To provide for the requisition and distribution of correctional industries articles and products directly through established state authorities, with no possibility of private profit except for those specific articles and products manufactured and sold pursuant to 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 profitable in view of the fact that it is a self-sufficient authority.
(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.
(b) Purchases of correctional industries articles or products by state offices, departments, institutions and agencies shall be made on requisition by the office, department, institution or agency requiring the articles or products.
(c) Political subdivisions, not-for-profit corporations and charitable agencies chartered in West Virginia, units of the federal government and units of government of other states may purchase articles and products produced by correctional industries. Entities which contract with the state, its political subdivisions, its agencies or its public institutions may purchase from correctional industries articles and products used in the performance of their contracts.
(a) The Correctional Industries Account is continued in the State Treasury. All funds collected from the sale or disposition of articles and products manufactured or produced by correctional industries in accordance with this article shall be deposited in this account.
(b) Except as provided in subsection (c) of this section, funds collected and deposited may be used only to purchase manufacturing supplies, equipment, machinery and materials used to carry out the purposes of this article; to pay necessary personnel; and to defray necessary expenses, including inmate earnings, all of which are under the direction of the commissioner and subject to the commissioner's approval.
(c) The Correctional Industries Account may not be maintained in excess of the amount necessary to efficiently and properly carry out the purposes of this article. In no event may the Correctional Industries Account be maintained in excess of $2 million. Any moneys in the account exceeding $2 million shall be transferred at the end of each fiscal year into the Division of Corrections Additional Operations Account established pursuant to subsection (d) of this section.
(d) There is hereby created in the State Treasury a special
revenue account known as the Additional Operations Account. The
commissioner is authorized to use funds from the account to offset
operational costs, for building and maintenance, purchases,
equipment repair or replacement for the Division of Corrections and
to defray necessary expenses incident to those activities.
(b) Any use of waste tires shall comply with applicable laws and with the rules of the Division of Environmental Protection.
(c) 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.
(d) Profits earned from the sale of products made by inmates from waste tires shall be deposited in the Correctional Industries Account to reimburse funds expended collecting waste tires and producing waste tire products, and to cover the reasonable cost of periodic replacement of outdated, obsolete or inoperable machinery or equipment used in such collection or production. Any funds 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.
(e) Notwithstanding the provisions of subsection (a) of this section, any article or product manufactured or produced, wholly or in part, by inmates of West Virginia correctional facilities which is designed and intended to be used solely by blind and persons with disabilities, including, but not limited to, braille books and reading materials, may be sold or distributed on the open market by the Division of Corrections or other state department or agency.
(f) 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 such other state agencies or departments as the commissioner designates. The arts and crafts may be sold only on consignment, so that the inmates whose arts and crafts products are sold receive payment for the products. Payments shall be deposited in accounts or funds and managed as provided in section three-a, article one of this chapter: Provided, That when the Division of Corrections or other agency or department of state government provides materials used in the production of an arts and crafts product, the fair market value of such materials may be deducted from the account of the individual inmate after the sale of the product.
(g) For purposes of this section, "arts and crafts" means articles produced individually by artistic or craft skill such as painting, sculpture, pottery, jewelry or similar articles.
(b) In connection with an agreement made under subsection (a) of this section, the commissioner may lease land and improvements on the grounds of a state correctional facility for use by the private party to the agreement. Any such lease shall be for a term of not more than twenty years and may contain options for renewal.
(1) That a participating inmate be paid at a rate not less than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
(2) That an inmate's work or participation in a PIE certification program shall be only on a voluntary basis and only after the inmate has been informed of the conditions of participation;
(3) That, in the discretion of the commissioner or the commissioner's designee, any inmate may be removed from or refused participation in the PIE certification program;
(4) That the agreement will not result in the displacement of civilian workers; and
(5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to inmates participating in the PIE certification program: Provided, That the commissioner of the division of corrections may provide workers compensation or equivalent insurance coverage for persons participating in the PIE certification program, if reimbursement is made to the division by the private person or entity for all costs of the workers' compensation insurance or equivalent coverage, as a condition of the agreement.
(b) The provisions of this section shall not apply to correctional industry service contracts under section four of this article or to operations authorized in 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 withholding of state, federal and local taxes, and after other deductions provided for in this chapter, including expenses for room and board: Provided, That the commissioner shall adopt policies and procedures for the additional deduction from an inmate's earnings 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 shall not exceed eighty percent of the inmate's gross earnings. Earnings deposited by the commissioner, with accrued interest, shall be paid to the inmate no later than at the inmate's discharge or release on parole.
(e) Spousal support or child support shall be deducted from an
inmate's earnings as directed by the inmate or by court order. If
the inmate's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the
Bureau for Child Support Enforcement or any other state's public
(b) In connection with any agreement made under subsection (a) of this section, the director may lease land and improvements on the grounds of a juvenile correctional facility for use by the private party to the agreement. Any such lease shall be for a term of not more than twenty years and may contain options for renewal.
(1) That a participating resident be paid at a rate not less than that paid for similar work in the same locality's private sector, including applicable wage increases for overtime work;
(2) That a resident's work or participation in a PIE certification program shall be only on a voluntary basis and only after the resident has been informed of the conditions of participation;
(3) That, in the discretion of the director or the director's designee, any resident may be removed from or refused participation in the PIE certification program;
(4) That the agreement will not result in the displacement of civilian workers; and
(5) That the private person or entity shall provide for workers' compensation insurance, or equivalent coverage, to residents participating in the PIE certification program: Provided, That, the director of the division of juvenile services may provide workers compensation or equivalent insurance coverage for persons participating in the PIE certification program, if reimbursement is made to the division by the private person or entity for all costs of the workers' compensation insurance or equivalent coverage, as a condition of the agreement.
(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 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 a resident participating in a PIE certification program under this article shall be deposited in the Resident Trust Account with the Division of Juvenile Services. The earnings shall be paid to the resident after withholding of state, federal and local taxes, and after other deductions provided for in this chapter. The expenses of room and board, as fixed by the director and the budget agency for 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, shall be deducted: Provided, That the director shall adopt policies and procedures for the additional deduction from a resident's earnings 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 shall not exceed eighty percent of the resident's gross earnings. Earnings deposited by the director, with accrued interest, shall be paid to the resident no later than at the resident's discharge or release on parole.
When special circumstances warrant, or for just cause, the director may waive room and board charges by 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 shall be deducted from a
resident's earnings as directed by the resident or by court order.
If the resident's dependents are receiving Temporary Assistance for
Needy Families (TANF), the disbursements shall be made to the
Bureau for Child Support Enforcement or any other state's public
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.