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Introduced Version Senate Bill 263 History

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sb263 intr
Senate Bill No. 263

(By Senators Green, White and Palumbo)

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[Introduced February 16, 2009; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §25-1-17 and §25-1-18 of the Code of West Virginia, 1931, as amended, all relating to monitoring of inmate telephone calls; procedures and restrictions; calls to or from attorneys excepted; monitoring inmate mail; procedures and restrictions; identifying mail from a state correctional institution; and mail to or from attorneys excepted.

Be it enacted by the Legislature of West Virginia:
That §25-1-17 and §25-1-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. ORGANIZATION AND INSTITUTIONS AND CORRECTIONS MANAGEMENT.

§25-1-17. Monitoring of inmate telephone calls; procedures and restrictions; calls to or from attorneys excepted.
(a) The Commissioner of Corrections or his or her designee is authorized to monitor, intercept, record and disclose telephone calls to or from adult inmates of state correctional institutions in accordance with the following provisions:
(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, and his or her 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 the an appropriate law-enforcement agency only if the when disclosure is necessary for the investigation, prevention or prosecution of a crime or to safeguard the orderly operation of the correctional institution further disclosure may be made in civil or administrative proceedings, when in the discretion of the commissioner the disclosure is:
(A) Necessary to safeguard the orderly operation of the correctional institution;
(B) Necessary for the investigation of a crime; Necessary to protect the interest of the Division of Corrections;
(C) Necessary for the prevention of a crime;
(D) Necessary for the prosecution of a crime;
(E) (C) Required by an order of a court of competent jurisdiction; or
(F) (D) Necessary to protect persons from physical harm or the threat of physical harm;
(5) All recordings of telephone calls must be destroyed within twelve months unless disclosed pursuant to subdivision (4) of this subsection; and shall be maintained and destroyed in accordance with such record retention schedule as the Division of Corrections may adopt; 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. Such These calls shall not be monitored, intercepted, recorded or disclosed in any matter.
(b) The commissioner shall propose promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code pursuant to his or her rule-making authority found in section five of this article, 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.
§25-1-18. Monitoring inmate mail; procedures and restrictions;
identifying mail from a state correctional
institution; mail to or from attorneys excepted.

(a) The Commissioner of Corrections or his or her designee is authorized to monitor, open, review, copy and disclose mail to adult inmates of state correctional institutions in accordance with the following provisions:
(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 authorities only if the disclosure is agency when disclosure is necessary for the investigation, prevention or prosecution of a crime or to safeguard the orderly operation of the correctional institution further disclosure may be made in civil or administrative proceedings, when in the discretion of the commissioner the disclosure is:
(A) Necessary to safeguard the orderly operation of the correctional institution;
(B) Necessary for the investigation of a crime; to protect the interest of the Division of Corrections;
(C) Necessary for the prevention of a crime;
(D) Necessary for the prosecution of a crime;
(E) (C) Required by an order of a court of competent jurisdiction; or
(F) (D) Necessary to protect persons from physical harm or the threat of physical harm;
(5) All copies of mail must be destroyed within twelve months unless disclosed pursuant to subdivision (4) of this subsection; shall be maintained and destroyed in accordance with the records retention schedule as the Division of Corrections may adopt; 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 deemed by the commissioner or warden not to jeopardize the safe and secure operation of the facility or to be detrimental to an ongoing investigation.
(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 inmate's 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 following provisions of subsection (a)(4) herein:
(1) The inmate has previously sent mail that was threatening to the recipient or that would facilitate physical violence or other criminal activity; and
(2) Such correspondence has come to the attention of the commissioner of corrections or the warden or administrator of the correctional institution;
(3) The contents of any inmate's outgoing mail may be copied and disclosed to appropriate law-enforcement authorities where the commissioner or his or her designee has reasonable cause to believe that it is necessary for the prevention, investigation, or prosecution of a crime or where necessary to protect persons from physical harm or the threat of physical harm;
(4) Only the commissioner and his or her designee shall have access to copies of inmate's outgoing mail unless disclosed pursuant to subdivision (3) of this subsection;
(5) (1) All copies of mail must be destroyed within twelve months unless disclosed pursuant to subdivision (3) of this subsection; shall be maintained and destroyed in accordance with such records retention schedule as the Division of Corrections may adopt;
(6) (2) The inmate whose mail has been copied and disclosed under this section shall be given a copy of all such mail and when it is deemed by the warden not to jeopardize the safe and secure operation of the facility or to be detrimental to an ongoing investigation; and
(7) (3) The provisions of this subsection do not apply to mail that an inmate sends to his or her attorney. Such mail may only be monitored or checked according to subsection (b).
(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 promulgate rules pursuant to his or her rule-making authority found in section five of this article 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.



NOTE: The purpose of this bill is to allow for disclosure of the recordings of inmates' telephone calls to law-enforcement agencies when disclosure is necessary for investigation, prevention or prosecution of a crime, as well as allowing for disclosure in civil or administrative proceedings in certain instances. The bill would also allow for disclosure of inmates' mail to law-enforcement agencies when disclosure is necessary for the investigation, prevention or prosecution of a crime, as well as allowing for disclosure in civil or administrative proceedings in certain instances.

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

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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