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SB280 SUB1 Senate Bill 280 History

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SB280 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 280

(By Senators Green, White and Chafin)

____________

[Originating in the Committee on the Judiciary;

reported March 13, 2009.]

____________


A BILL to repeal §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B-6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B- 17 and §28-5B-18 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and §25-7-17, all relating to enacting the Correctional Industries Act of 2009; authorizing the Commissioner of the Division of Corrections to enter into correctional industries contracts, develop a marketing plan, create catalogues and a website and determine prices; purchasing inmate-made articles and products by state agencies mandatory; exceptions; creating the Correctional Industries Account and the Construction and Operations Account; prohibiting sale of inmate-made goods on the open market; penalties; exceptions; authorizing the establishment of prison industry enhancement certification programs pursuant to Title 18 U. S. C. §1761(c); providing for agreements between private entities and the commissioner or the director of the Division of Juvenile Services to establish the federal programs; providing for the contents of the agreements; and updating certain terms.

Be it enacted by the Legislature of West Virginia:
That §28-5B-1, §28-5B-2, §28-5B-3, §28-5B-4, §28-5B-5, §28-5B- 6, §28-5B-7, §28-5B-8, §28-5B-9, §28-5B-10, §28-5B-11, §28-5B-12, §28-5B-13, §28-5B-14, §28-5B-15, §28-5B-16, §28-5B-17 and §28-5B-18 of the Code of West Virginia, 1931, as amended, be repealed; and that said code be amended by adding thereto a new article, designated §25-7-1, §25-7-2, §25-7-3, §25-7-4, §25-7-5, §25-7-6, §25-7-7, §25-7-8, §25-7-9, §25-7-10, §25-7-11, §25-7-12, §25-7-13, §25-7-14, §25-7-15, §25-7-16 and §25-7-17, all to read as follows:
ARTICLE 7. CORRECTIONAL INDUSTRIES ACT OF 2009.
§25-7-1. Legislative findings.

The Legislature finds that the means now provided for the use of inmate labor are inadequate to furnish a sufficient number of inmates with employment. It is hereby declared to be the intent of this article:
(a) To provide more adequate, regular and suitable employment for the inmates of this state;
(b) To utilize the labor of inmates for self-maintenance and for reimbursing this state for expenses incurred by reason of their crimes and confinement;
(c) To effect the requisitioning and disbursement of correctional industries articles and products directly through established state authorities with no possibility of private profits therefrom, except for those specific articles or products manufactured and sold pursuant to the provisions of Title 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program, and pursuant to sections thirteen, fourteen, fifteen and sixteen of this article; and
(d) To provide for correctional industries to be a profitable entity as it is a self-sufficient authority.
§25-7-2. Citation of article.
This article may be cited as the Correctional Industries Act of 2009.
§25-7-3. Establishment of industries at correctional facilities; purposes and extent.
The Commissioner of the Division of Corrections or his or her designee has the exclusive authority to execute any contracts that are necessary to effectuate the provisions of this article and is further authorized to purchase equipment, raw materials and supplies and to employ the supervisory personnel necessary to establish and maintain for this state at any correctional facility or institution now or hereafter under control of the commissioner industries for the utilization of services of inmates in the manufacture or production of articles or products as may be needed for the construction, operation, maintenance or use by any office, department, institution or agency supported, in whole or in part, by this state or as needed by its political subdivisions.
§25-7-4. Correctional industries service contracts.
(a) The commissioner may enter into contracts with private sector entities which would allow for inmate or resident labor to be provided through correctional industries and work that involves exportation of products. For purposes of this article, "service work" means any work, including repairs, replacement of original manufactured items, packaging, sorting, recycling, labeling or similar work that is not original equipment manufacturing. The use of inmate or resident labor may not result in the displacement of employed civilian workers within the local region in which work is being performed. The division may negotiate the wage to be paid for inmate or resident labor provided under correctional industries contracts and the wages may be less than the prevailing wage for work of a similar nature in the private sector.
(b) The Division of Corrections, in cooperation with the Department of Commerce, shall develop and maintain a marketing plan encouraging private sector businesses to employ inmates through the correctional industries program.
§25-7-5. Purchase of inmate-made goods by state agencies.

(a) On and after the effective date of this article, all offices, departments, institutions and agencies of this state which are supported, in whole or in part, by state funds shall purchase all articles or products required from the commissioner if those articles or products are produced or manufactured by correctional industries, as provided by this article. No state office, department, institution or agency may purchase any article or product that is produced by correctional industries from any other source, unless specifically excepted from the provisions of this section pursuant to section six of this article.
(b) All purchases of correctional industries' articles or products by state offices, departments, institutions and agencies shall be made upon requisition by the proper authority of the office, department, institution or agency requiring the articles or products.
(c) Political subdivisions, not-for-profit corporations or charitable agencies chartered in West Virginia may purchase any article or product produced by correctional industries. Units of the federal government and units of state government in other states may also purchase these articles and products. All entities which contract with the state, its political subdivisions, its agencies or its public institutions may purchase articles or products from correctional industries which are used in the performance of the contracts.
§25-7-6. Exceptions as to mandatory purchase requirement.

Exceptions from the mandatory purchase provisions of section five of this article may be made in any case where any article or product produced or manufactured by correctional industries does not meet the reasonable requirements of the requesting state office, department, institution or agency or where the requisition cannot be filled because of insufficient supply or other reason. No state office, department, institution or agency may evade the intent and meaning of this section by requesting unreasonable deadlines or slight variations from products produced or manufactured when the articles or products produced or manufactured by correctional industries are reasonably adapted to the actual needs of the office, department, institution or agency.
§25-7-7. Catalogues and a website of articles and products made and produced.

The commissioner shall: (1) Cause to be created and updated catalogues and a website containing a description of the articles and products manufactured or produced by correctional industries pursuant to the provisions of this article; and (2) make copies of the catalogue and the web site address available to state offices, departments, institutions and agencies of this state and its political subdivisions.
§25-7-8. Commissioner to determine prices.

The commissioner or his or her designee shall determine the prices at which all articles or products manufactured or produced by correctional industries are furnished, which prices shall be uniform and nondiscriminating to all, and shall be as near to the fair market price for those articles or products as is practicable.
§25-7-9. Annual statements by the commissioner.

The commissioner shall annually prepare a financial report in accordance with generally accepted accounting principles at the close of each fiscal year on the financial condition of the correctional industries operation. The commissioner shall file the reports within sixty days after the end of the last preceding year with the Secretary of the Department of Military Affairs and Public Safety, the Secretary of the Department of Administration and the Office of the Legislative Auditor.
§25-7-10. Indebtedness for capital outlay projects.
In order to carry out the provisions of this article the commissioner is authorized to enter into contracts and agreements with any person or persons regarding the acquisition and purchase of any equipment, tools, supplies and materials to the extent that the same may be paid for over a period not exceeding five years.
§25-7-11. Correctional industries account.

(a) There is hereby created in the State Treasury a nonappropriated special revenue account designated the Correctional Industries Account. All moneys collected by the commissioner from the sale or disposition of articles and products manufactured or produced by inmate labor in accordance with the provisions of this article shall be immediately deposited in this account.
(b) Except as provided in subsection (c) of this section, moneys collected and deposited may only be used for the purchase of manufacturing supplies, equipment, machinery and materials used to carry out the purposes of this article, as well as for the payment of the necessary personnel in charge thereof and to otherwise defray the necessary expenses incident thereto, including inmate earnings, all of which are under the direction and subject to the approval of the commissioner.
(c) The Correctional Industries Account may never be maintained in excess of the amount necessary to efficiently and properly carry out the intentions of this article and in no event may the Correctional Industries Account be maintained in excess of the sum of $1,500,000. When it is determined by the Governor and the Secretary of the Department of Military Affairs and Public Safety that the Correctional Industries Account has reached a sum in excess of the requirements of this article, the excess shall be transferred at the end of each fiscal year into the Construction and Operations Account created in subsection (d) of this section.
(d) There is created in the State Treasury a nonappropriated special revenue account known as the Construction and Operations Account. This account shall consist of moneys deposited pursuant to subsection (a) of this section as well as gifts, donations or any appropriations by the Legislature. The commissioner is authorized to use funds from the account for the construction of a new correctional academy and offset operational costs at all Department of Corrections facilities for building maintenance or purchase, for equipment repair or replacement and to defray necessary expenses incident to those activities.
§25-7-12. Sale of inmate-made goods on open market prohibited; penalty; exceptions.

(a) Subject to the provisions of subsections (c) and (d) of this section and section five of this article, it is unlawful to sell or offer for sale on the open market any articles or products manufactured or produced, wholly or in part, by inmates of this state, or any other state, except inmates on parole or probation. This section does not apply to articles or products manufactured and sold pursuant to sections thirteen, fourteen, fifteen and sixteen of this article or pursuant to the requirements of Title 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program, nor does this section apply to the sale of products made with waste tires: Provided, That any use of waste tires shall comply with applicable laws and rules of the Division of Environmental Protection: Provided, however, That any products made by inmates from waste tires and sold on the open market must be competitively priced with privately produced goods of the same nature and may not be sold at a loss: Provided further, That any profits earned from the sale of products made by inmates from waste tires shall be distributed to the Correctional Industries Account to reimburse all moneys expended in the collection of waste tires and the production of waste tire products, including a reasonable amount to be set aside for the periodic replacement of outdated, obsolete or inoperable machinery or equipment used in collection or production and any moneys remaining shall be divided equally between the Correctional Industries Account and the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code.
(b) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200 nor more than $5,000 or confined in jail not less than three months nor more than one year, or both. Each sale or offer for sale shall constitute a separate offense under this section.
(c) Notwithstanding the provisions of subsection (a) of this section, any articles or products manufactured or produced, wholly or in part, by inmates of West Virginia correctional facilities which are designed and intended to be used solely by blind and handicapped persons, including, but not limited to, braille books and reading materials, may be sold or offered for sale or distributed on the open market by the Division of Corrections or other state department or agency.
(d) Notwithstanding the provisions of subsection (a) of this section, arts and crafts produced by inmates may be sold to the general public by the Division of Corrections or by other state agencies or departments as the commissioner may designate. The arts and crafts may be sold only on a consignment basis so that the inmates, whose arts and crafts products are sold, shall receive payment for the products. The payments shall be deposited in accounts or funds and managed in a manner as provided by section three-a, article one, chapter twenty-five of this code: Provided, That when the Division of Corrections or any other agency or department of state government provides any materials used in the production of an arts and crafts product, the fair market value of the materials may be deducted from the account of the individual inmate after the sale of the product.
(e) For purposes of this section, "arts and crafts" means articles produced individually by artistic or craft skill such as, but not limited to, painting, sculpture, pottery and jewelry.
(f) Notwithstanding the provisions of subsection (a) of this section, paper for use in copiers, fax machines, for printing or duplication purposes and boxes for shipping and storage may be procured to the extent practicable at the lowest possible price while at the same time ensuring quality material and timely delivery thereof for resale to offices, departments, institutions or agencies supported, in whole or in part, by this state and to political subdivisions thereof.
§25-7-13. Establishment of programs authorized by the federal Prison Industry Enhancement (PIE) Certification Program for employment of inmates by private persons; lease of land and improvements.

(a) The Commissioner of the Division of Corrections may establish programs for the employment of inmates by a private person, corporation, partnership, limited liability corporation or other business entity for the manufacture of certain articles and products as part of a program authorized pursuant to Title 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program. In establishing these programs, the commissioner may enter into agreements with any private person, corporation, partnership, limited liability corporation or other business entity to construct or lease facilities upon the premises of any state adult correctional facility, or at a suitable location as may be agreed upon, for the manufacture and processing of goods or any other business, commercial or agricultural enterprise.
(b) In administering this chapter, the commissioner may, as part of or in connection with any agreement made under subsection (a) of this section, lease, for not more than twenty years, with options of renewal, land, with the improvements thereon, located on the grounds of any state correctional facility for use by the private party to that agreement for providing inmate work under this article.
§25-7-14. Agreement between commissioner and private person for manufacturing pursuant to Prison Industry Enhancement (PIE) Certification Program; wages; inmate participation on voluntary basis; and workers' compensation.

(a) The Commissioner of the Division of Corrections and a private person, corporation, partnership, limited liability corporation or other business entity may enter into an agreement to establish a program for inmates to manufacture articles and products pursuant to the federal Prison Industry Enhancement (PIE) Certification Program. The agreement shall include the following:
(1) That an inmate participating be paid at least the prevailing wage for the type of work as established by the Department of Workforce Development, including applicable wage increases for overtime work;
(2) That an inmate's work or participation within a (PIE) certification program shall be only on a voluntary basis and only after the inmate has been informed of the conditions of his or her participation;
(3) That, in the discretion of the commissioner or his or her designee, any inmate may be removed from or not be allowed to participate in the (PIE) certification program;
(4) That the agreement will not result in the displacement of civilian workers employed before the program implementation; and (5) That the private person, corporation, partnership, limited liability corporation or other business entity shall provide for workers' compensation insurance or the equivalent coverage to all inmates participating in the (PIE) certification program.
(b) The provisions of this section shall not apply to correctional industry service contracts provided for in section four of this article or to operations making articles or products authorized by section three of this article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under this chapter is a private enterprise subject to federal and state laws governing the operation of similar enterprises.
(d) The earnings of an inmate participating in a (PIE) certification program under this article shall be deposited in the Inmate Trust Account with the Division of Corrections. The earnings shall be paid to the inmate after all state, federal and local taxes are withheld, together with all other deductions required and authorized by this chapter, including expenses for room and board: Provided, That in addition thereto, the commissioner shall adopt policy and procedures to provide for the deduction of an inmate's earnings in an amount of not less than five percent nor more than twenty percent to be paid into the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code. Total deductions of an inmate's earnings shall not exceed eighty percent of the inmate's gross earnings. If the earnings are deposited by the commissioner, the amount, with any accrued interest, shall be returned to the inmate no later than at the time of the inmate's release on parole or discharge. (e) Spousal support or child support, as directed by the inmate or as ordered by a family court judge, is to be deducted from his or her earnings. If the resident's dependents are receiving Temporary Assistance for Needy Families (TANF), the disbursements are to be made to the Bureau for Child Support Enforcement or any other state's public assistance agency.
§25-7-15. Establishment of programs authorized by the federal Prison Industry Enhancement (PIE) Certification Program for employment of juvenile residents by private persons; lease of land and improvements.

(a) The Director of the Division of Juvenile Services may establish programs for the employment of residents by a private person, corporation, partnership, limited liability corporation or other business entity for the manufacture of certain articles and products as part of a program authorized pursuant to Title 18 U. S. C. §1761(c), the Prison Industry Enhancement (PIE) Certification Program. In establishing these programs, the director may enter into agreements with any private person, corporation, partnership, limited liability corporation or other business entity to construct or lease facilities upon the premises of any state juvenile correctional facility, or at a suitable location as may be agreed upon, for the manufacture and processing of goods or any other business, commercial or agricultural enterprise.
(b) In administering this article, the director may, as part of or in connection with any agreement made under subsection (a), lease, for not more than twenty years, with options of renewal, land, with the improvements thereon, located on the grounds of any state correctional facility for use by the private party to that agreement for providing resident work under this article.
§25-7-16. Agreement between director and private person for manufacturing pursuant to Prison Industry Enhancement (PIE) Certification Program; wages; resident participation on voluntary basis; workers' compensation and unemployment compensation.

(a) The Director of the Division of Juvenile Services and a private person, corporation, partnership, limited liability corporation or other business entity may enter into an agreement to establish a program for residents to manufacture articles and products pursuant to the federal Prison Industry Enhancement (PIE) Enhancement Program. The agreement shall include the following:
(1) That a resident participating be paid at least the prevailing wage for the type of work as established by the Department of Workforce Development, including applicable wage increases for overtime work;
(2) That a resident's work or participation within a prison industry enhancement program shall be only on a voluntary basis and only after the resident has been informed of the conditions of the resident's participation;
(3) That, in the discretion of the director or his or her designee, any resident may be removed from or not be allowed to participate in the (PIE) certification program;
(4) That the agreement will not result in the displacement of civilian workers employed before the program implementation; and (5) That the private person, corporation, partnership, limited liability corporation or other business entity provide for workers' compensation insurance or the equivalent coverage to all residents participating in the (PIE) certification program.
(b) The provisions of this section shall not apply to correctional industry service contracts provided for in section four of this article or to operations making goods authorized by section three of this article that are restricted from sale in the open market.
(c) A commercial or agricultural enterprise established under this chapter is a private enterprise subject to federal and state laws governing the operation of similar enterprises.
(d)(1) The earnings of a resident participating in a Prison Industry Enhancement (PIE) Certification Program under this chapter shall be deposited in the Resident Trustee Account with the Division of Juvenile Services. The earnings shall be paid to the resident after all state, federal and local taxes are withheld, together with all other deductions required and authorized by this chapter. The expenses of room and board, as fixed by the director and the budget agency, in facilities operated by the director, or, if the resident is housed in a facility not operated by the director, the amount paid by the Division of Juvenile Services to the operator of the facility or other appropriate authority for room and board and other incidentals as established by agreement between the Division of Juvenile Services and the appropriate authority are to be deducted: Provided, That in addition thereto, the director shall adopt policy and procedures to provide for the deduction of a resident's earnings in an amount of not less than five percent nor more than twenty percent to be paid into the Crime Victims Compensation Fund created by article two-a, chapter fourteen of this code. Total deductions of a resident's earnings shall not exceed eighty percent of the resident's gross earnings. If the earnings are deposited by the director, the amount, with any accrued interest, shall be returned to the resident no later than at the time of the resident's release on parole or discharge.
(2) The director may, when special circumstances warrant or for just cause, waive the collection of room and board charges by or on behalf of a facility operated by the Division of Juvenile Services or, if the resident is housed in a facility not operated by the Division of Juvenile Services, authorize payment of room and board charges from other available funds.
(e) Spousal support or child support, when directed by the resident or ordered by a family court judge, is to be deducted. If the resident's dependents are receiving Temporary Assistance for Needy Families (TANF), the disbursements are to be made to the Bureau for Child Support Enforcement or any other state's public assistance agency.
§25-7-17. Provisions of article severable.
If any section, subsection, provision or sentence of this article or the application thereof to any person, or any circumstance, is held invalid, the remainder of the article and the application of any such section, subsection, provision or sentence to other persons or circumstances is not affected thereby.
_______

(NOTE: The purpose of this bill is to enact the Correctional Industries Act of 2009 by modernizing the provisions of the Prison- made Goods Act of 1939. The bill also authorizes the creation of the Prison Industry Enhancement Certification Program authorized by Title 18 U. S. C. §1761(c).

This article is new; therefore, strike-throughs and underscoring have been omitted.

This bill was recommended for introduction and passage during the 2009 Regular Session of the Legislature by the Legislative Oversight Committee on Regional Jail and Correctional Facility Authority.)
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