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S1517................................................by JUDICIARY AND RULES
PRIVATE PRISONS - CITIES/COUNTIES - Adds to existing law to provide for the
construction or operation of private prison facilities in a county or a
city pursuant to contract or written approval; to provide the authority of
a county or city to house inmates in a private prison facility; to provide
for contracts between a county or a city and a private prison contractor;
to provide requirements for private prison facilities; to provide for
housing out-of-state inmates in private prison facilities; to provide for
monitoring of private prisons by a county or a city; to provide notice
requirements in the event of a riot, rebellion, escape or other emergency
situation at a private prison facility and to provide reimbursement for
costs incurred by responding governmental entities; to provide for crimes
committed in a private prison facility; and to provide for enforcement,
available remedies and a civil penalty.
02/24 Senate intro - 1st rdg - to printing
02/25 Rpt prt - to Jud
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/06 3rd rdg - PASSED - 30-0-5
AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow,
Darrington, Deide, Frasure, Geddes, Hansen, Hawkins, Ingram, Keough,
King, Lee, McLaughlin, Noh, Parry, Richardson, Riggs, Risch, Sandy,
Schroeder, Sorensen, Stennett, Sweeney, Twiggs, Wheeler, Whitworth
NAYS--None
Absent and excused--Branch, Danielson, Dunklin, Ipsen, Thorne
Floor Sponsor - Darrington
Title apvd - to House
03/09 House intro - 1st rdg - to Jud
03/18 Rpt out - rec d/p - to 2nd rdg
03/19 2nd rdg - to 3rd rdg
03/19 Rls susp - PASSED - 62-1-7
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Black(15),
Black(23), Boe, Bruneel, Callister, Chase, Clark, Crane, Cuddy, Deal,
Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes, Gould,
Hadley, Hansen, Henbest, Hornbeck, Jaquet, Jones(9), Jones(22),
Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander, Kunz, Lake,
Linford, Loertscher, Mader, Marley, McKague, Meyer, Miller,
Mortensen, Pomeroy, Reynolds, Richman, Ridinger, Robison, Sali,
Schaefer, Stevenson, Stone, Stubbs, Tilman, Tippets, Trail, Watson,
Wheeler, Zimmermann, Mr Speaker
NAYS -- Stoicheff
Absent and excused -- Bivens, Campbell, Crow, Newcomb, Pischner,
Taylor, Wood
Floor Sponsor - Gould
Title apvd - to Senate
03/20 To enrol - rpt enrol - Pres signed
03/23 Sp signed - to Governor
03/25 Governor signed
Session Law Chapter 360
Effective: 07/01/98
S1517|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1517 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO PRIVATE PRISON FACILITIES; AMENDING TITLE 20, IDAHO CODE, BY THE 3 ADDITION OF A NEW CHAPTER 8, TITLE 20, IDAHO CODE, TO PROVIDE DEFINITIONS, 4 TO PROVIDE FOR THE APPLICATION OF THE CHAPTER, TO PROVIDE FOR THE CON- 5 STRUCTION OR OPERATION OF PRIVATE PRISON FACILITIES IN A COUNTY OR A CITY 6 PURSUANT TO CONTRACT OR WRITTEN APPROVAL, TO PROVIDE THE AUTHORITY OF A 7 COUNTY OR CITY TO HOUSE INMATES IN A PRIVATE PRISON FACILITY, TO PROVIDE 8 FOR CONTRACTS BETWEEN A COUNTY OR A CITY AND A PRIVATE PRISON CONTRACTOR, 9 TO PROVIDE REQUIREMENTS FOR PRIVATE PRISON FACILITIES, TO PROVIDE FOR 10 HOUSING OUT-OF-STATE INMATES IN PRIVATE PRISON FACILITIES, TO PROVIDE FOR 11 MONITORING OF PRIVATE PRISONS BY A COUNTY OR A CITY, TO PROVIDE NOTICE 12 REQUIREMENTS IN THE EVENT OF A RIOT, REBELLION, ESCAPE OR OTHER EMERGENCY 13 SITUATION AT A PRIVATE PRISON FACILITY AND TO REQUIRE REIMBURSEMENT FOR 14 COSTS INCURRED BY RESPONDING GOVERNMENTAL ENTITIES, TO PROVIDE FOR CRIMES 15 COMMITTED IN A PRIVATE PRISON FACILITY, TO PROVIDE FOR OTHER CODE REFER- 16 ENCES AND TO PROVIDE FOR ENFORCEMENT, AVAILABLE REMEDIES AND A CIVIL PEN- 17 ALTY. 18 Be It Enacted by the Legislature of the State of Idaho: 19 SECTION 1. That Title 20, Idaho Code, be, and the same is hereby amended 20 by the addition thereto of a NEW CHAPTER , to be known and desig- 21 nated as Chapter 8, Title 20, Idaho Code, and to read as follows: 22 CHAPTER 8 23 PRIVATE PRISON FACILITIES 24 20-801. DEFINITIONS. In this chapter: 25 (1) "Contracting authority" means a board of county commissioners or the 26 governing body of a city. 27 (2) "Governmental entity" means a state, county, city, municipal corpora- 28 tion or other political subdivision of the state, or a territory of the United 29 States and any political subdivision thereof. 30 (3) "Inmate" means a person arrested for, charged with or convicted of a 31 criminal offense and confined in or subject to confinement in a correctional 32 or detention facility. 33 (4) "Private prison contractor" means any person, organization, partner- 34 ship, joint venture, corporation or other business entity engaged in the site 35 selection, design, design/building, acquisition, construction, 36 construction/management, financing, maintenance, leasing, leasing/purchasing, 37 management or operation of private prison facilities or any combination of 38 these services. 39 (5) "Private prison facility" means a correctional facility constructed 40 or operated by a private prison contractor for the confinement of inmates. 41 20-802. APPLICATION OF CHAPTER. The provisions of this chapter shall not 2 1 apply to contracts of the state of Idaho for the housing of inmates in a pri- 2 vate prison facility or local government detention facility. 3 20-803. PRIVATE PRISON CONTRACTORS -- CONTRACT OR APPROVAL REQUIRED TO 4 CONSTRUCT AND OPERATE PRIVATE PRISON FACILITIES AND TO HOUSE OUT-OF-STATE 5 INMATES. (1) A private prison contractor may not construct or operate a pri- 6 vate prison facility in this state except pursuant to a contract with the 7 state of Idaho, as authorized in chapter 2, title 20, Idaho Code, or pursuant 8 to a contract with, or with the express written approval of, a county or city 9 of this state, as authorized by the provisions of this chapter. 10 (2) A private prison contractor may not house in a private prison facil- 11 ity in this state inmates who have been convicted of offenses committed 12 against the laws of a governmental entity other than the state of Idaho and 13 its political subdivisions except pursuant to a contract with, or with the 14 express written approval of, the board of county commissioners of the county 15 in which the facility is located or the governing body of the city in which 16 the facility is located, and only if the requirements of section 20-807, Idaho 17 Code, are met. 18 20-804. AUTHORITY OF COUNTY OR CITY TO HOUSE INMATES IN A PRIVATE PRISON 19 FACILITY. (1) A board of county commissioners or the governing body of a city 20 may authorize the housing of minimum to medium security inmates of the county 21 or the city in a private prison facility pursuant to contract with the private 22 prison contractor or with the express written approval of the board of county 23 commissioners or the governing body of the city. 24 (2) A board of county commissioners may not contract with a private 25 prison contractor in which a commissioner or an elected or appointed peace 26 officer or other county official has a financial interest. The governing body 27 of a city may not contract with a private prison contractor in which the 28 mayor, a member of the city council, or any appointed peace officer or other 29 city official has a financial interest. A contract made in violation of the 30 provisions of this subsection is void. 31 20-805. CONTRACTS WITH A PRIVATE PRISON CONTRACTOR. (1) A board of county 32 commissioners or the governing body of a city, may enter into a contract with 33 a private prison contractor for the site selection, design, design/building, 34 acquisition, construction, construction/management, financing, maintenance, 35 leasing, leasing/purchasing, management or operation of private prison facili- 36 ties or any combination of these services, subject to the following require- 37 ments and limitations: 38 (a) Any request for proposals, any original contract, any contract 39 renewal, any price or cost adjustment or any other amendment to any con- 40 tract for the incarceration of individuals in a private prison facility 41 shall be reviewed and approved by the contracting authority; 42 (b) No contract authorized by the provisions of this section shall be 43 awarded until the private prison contractor demonstrates to the satisfac- 44 tion of the contracting authority that the contractor possesses the neces- 45 sary qualifications and experience to provide the services specified in 46 the contract; that the contractor can provide the necessary qualified per- 47 sonnel to implement the terms of the contract; that the financial condi- 48 tion of the contractor is such that the terms of the contract can be ful- 49 filled; that the contractor has the ability to comply with applicable 50 court orders and corrections standards; and that the proposed private 51 prison facilities or the correctional services proposed by the contractor 52 meet constitutional minimums; 3 1 (c) The contract shall provide for the assumption of liability by the 2 private prison contractor for all claims arising from the services per- 3 formed under the contract by the private prison contractor; 4 (d) No contract authorized by the provisions of this section shall be 5 awarded until the private prison contractor demonstrates to the satisfac- 6 tion of the contracting authority that the contractor can obtain insurance 7 or provide self-insurance for the contractor and its officers, guards, 8 employees and agents against all claims, including claims based on viola- 9 tions of civil rights, arising from the services performed under the con- 10 tract by the private contractor and to indemnify the contracting authority 11 against all claims, including claims based on violations of civil rights, 12 arising from the services performed under the contract and to compensate 13 the contracting authority for any losses incurred due to the operation of 14 private prison facilities; 15 (e) If the contract includes construction, the contract shall require a 16 performance bond approved by the contracting authority that is adequate 17 and appropriate for the proposed construction contract; 18 (f) Except as otherwise permitted under the constitution or laws of the 19 state of Idaho, no contract awarded pursuant to this section shall provide 20 for the encumbrance of funds beyond the amount available for a fiscal 21 year. 22 (2) Any contract between a contracting authority and a private prison 23 contractor, whereby the contractor provides for the housing, care, and control 24 of inmates in a facility operated by the contractor, shall contain, in addi- 25 tion to other provisions, terms and conditions: 26 (a) A requirement that the contractor provide the services in a facility 27 which meets correctional standards satisfying constitutional minimums, 28 state and federal laws and applicable court orders; 29 (b) If a private prison contractor enters into a contract with a board of 30 county commissioners for a private prison facility to be located on pri- 31 vate land within the limits of any city, it shall be required that the 32 contractor obtain written authorization from the governing body of the 33 city in which the facility is to be located; 34 (c) If a private prison facility is to be located on land owned by the 35 county or the city or other publicly owned land which is not subject to 36 real property taxes, the contract may provide for the payment of a fee to 37 the contracting authority which shall be in lieu of property taxes, as 38 compensation for the costs of regulating, monitoring and providing ser- 39 vices to the facility; 40 (d) A requirement that the private prison contractor provide training to 41 its personnel to a level acceptable to the contracting authority. The 42 provisions of this section shall not be construed to confer peace officer 43 status upon any employee of the private prison contractor or to authorize 44 the use of firearms except to prevent escape from the facility or from 45 custody while being transported to or from the facility or to prevent an 46 act which would cause death or serious bodily injury to any person. The 47 provisions of this section shall not be construed to confer county or city 48 employee status upon any employee of the private prison contractor. 49 (e) A requirement that the private prison contractor, its officers, 50 guards, employees, and agents immediately notify the county sheriff and 51 any other law enforcement or other governmental entities, agencies or per- 52 sonnel named in the contract or required to be informed as provided in 53 this chapter of any riot, rebellion, escape or other emergency situation 54 occurring at the facility, and a requirement that the private prison con- 55 tractor reimburse costs as provided in section 20-809, Idaho Code. 4 1 (3) Contracts awarded under the provisions of this section shall, at a 2 minimum, comply with the following: 3 (a) Provide for internal and perimeter security to protect the public, 4 employees and inmates; 5 (b) Provide that the private prison contractor shall not benefit finan- 6 cially from the labor of inmates nor shall any inmate ever be placed in a 7 position of authority over another inmate. Any profits realized from the 8 operation of a prison enterprise program shall revert to the contracting 9 authority; 10 (c) Impose discipline on inmates only in accordance with applicable 11 rules, policies and procedures satisfying constitutional minimums, state 12 and federal laws and applicable court orders; 13 (d) Provide proper food, clothing, housing and medical care as provided 14 for in the contract. 15 (4) The contracting authority or its designee, as provided in the con- 16 tract, shall monitor the performance of the private prison contractor. 17 Included in the powers and responsibilities of the contracting authority or 18 its designee, when acting as the contract monitor of the private prison con- 19 tract are: 20 (a) A determination if the requirements of the contract are being satis- 21 factorily performed; 22 (b) A determination whether the private prison contractor and its person- 23 nel are complying with the provisions of this chapter; 24 (c) A determination if applicable ordinances, policies and procedures of 25 the contracting authority are being followed by the private prison con- 26 tractor and its personnel; 27 (d) A determination whether the facility is being operated in a manner 28 which adequately safeguards and protects the safety of the public; 29 (e) The enactment of ordinances or the adoption of written policies or 30 procedures interpreting or making specific application of the provisions 31 of this section. 32 20-806. PRIVATE PRISON FACILITIES -- REQUIREMENTS. A private prison con- 33 tractor operating a private prison facility within a county or a city of this 34 state shall comply with the following requirements: 35 (1) The facility shall meet correctional standards satisfying constitu- 36 tional minimums, state and federal laws and applicable court orders; 37 (2) If the private prison facility is located on land owned by the county 38 or the city or other publicly owned land which is not subject to real property 39 taxes, the county or the city, if the facility is located within the limits of 40 the city, may require the private prison contractor to pay fees to the county 41 or the city in lieu of property taxes, as compensation for the costs to the 42 county or the city of regulating, monitoring and providing services to the 43 facility; 44 (3) The facility must provide internal and perimeter security to protect 45 the public, employees and inmates; 46 (4) The private prison contractor shall impose discipline on inmates only 47 as permitted by correctional standards satisfying constitutional minimums, 48 state and federal laws, and applicable court orders; 49 (5) The private prison contractor shall provide inmates with proper food, 50 clothing, housing and medical care in accordance with constitutional minimums, 51 state and federal laws, and applicable court orders. 52 20-807. OUT-OF-STATE INMATES. (1) A board of county commissioners may 53 authorize a private prison contractor operating a private prison facility 5 1 within the county and the governing body of a city may authorize a private 2 prison contractor operating a private prison facility within the city to house 3 minimum to medium security inmates convicted of offenses committed against the 4 laws of a governmental entity other than the state of Idaho or its political 5 subdivisions. 6 (2) Out-of-state inmates may be housed in a private prison facility only 7 if the following requirements are met: 8 (a) The custody level capacity and availability in the private prison 9 facility is adequate to house the inmates; 10 (b) The private prison contractor and the board of county commissioners 11 or the governing body of the city, in cooperation with state and local law 12 enforcement agencies, and other appropriate governmental entities and 13 agencies, have developed a written plan explaining the procedure to be 14 used to coordinate law enforcement and other necessary activities in 15 response to any riot, rebellion, escape or other emergency situation 16 occurring in the facility. 17 (c) The private prison facility satisfies standards for the care, cus- 18 tody, treatment and control of inmates which comply with constitutional 19 minimums, state and federal laws and applicable court orders and any addi- 20 tional standards required by the county or the city; 21 (d) Each inmate to be released from custody must be released in the send- 22 ing governmental entity's jurisdiction; 23 (e) Before transferring the inmate to Idaho, the receiving facility shall 24 review: 25 (i) All records concerning the sending governmental entity's clas- 26 sification of the inmate, including records relating to the inmate's 27 conduct while confined in the sending governmental entity; and 28 (ii) Appropriate medical information concerning the inmate, includ- 29 ing certification of tuberculosis screening or treatment and certifi- 30 cation that the inmate has undergone HIV testing with negative 31 results. 32 (f) The sending governmental entity will not transfer and the receiving 33 facility will not accept an inmate who has a record of institutional vio- 34 lence involving the use of a deadly weapon or a pattern of violence while 35 confined in a facility within the sending governmental entity's jurisdic- 36 tion or a record of escape or attempted escape from secure custody; 37 (g) The receiving facility will determine the inmate's custody level in 38 order to ensure that the custody level assignments for the facility as a 39 whole are compatible with the construction security level availability in 40 the facility. If it is determined by the county or the city or the pri- 41 vate prison contractor that the inmate poses a substantial risk to the 42 community, prison population or staff or should be classified as maximum 43 security, the inmate will be returned to the sending governmental entity; 44 and 45 (3) The private prison contractor shall reimburse costs as specified in 46 section 20-809, Idaho Code. 47 (4) The provisions of this section shall not be construed as a limitation 48 upon the authority of the state of Idaho, a county or a city of this state to 49 incarcerate, detain or place a person convicted of an offense committed 50 against the laws of the United States, a territory of the United States, 51 another state or a political subdivision thereof in a correctional facility, 52 county jail or other governmental detention facility in this state pursuant to 53 the laws of the United States, the state of Idaho or other applicable law. 54 20-808. MONITORING PRIVATE PRISONS. In addition to and without limiting 6 1 the authority provided in this chapter or by contract entered into pursuant to 2 section 20-805, Idaho Code, or as provided by other applicable law, the board 3 of county commissioners, the county sheriff, the prosecuting attorney or the 4 authorized agents and employees of a county in which a private prison facility 5 is located and the governing board of a city, the city attorney, law enforce- 6 ment personnel of the city and other authorized agents and employees of the 7 city in which a private prison facility is located, shall be authorized to 8 monitor the facility and to enter the facility and the grounds thereof for the 9 following purposes: 10 (1) To determine if the private prison contractor, its personnel and the 11 private prison facility are in compliance with the provisions of this chapter 12 and any ordinances or written policies and procedures of the county or city 13 governing the private prison facility; 14 (2) To investigate any criminal conduct which has occurred, is occurring 15 or is alleged to have occurred in the facility; 16 (3) To determine whether the facility is being operated in a manner which 17 adequately safeguards and protects the safety of the public. 18 20-809. RIOT, REBELLION, ESCAPE OR EMERGENCY SITUATION -- NOTICE -- REIM- 19 BURSEMENT FOR COSTS. (1) The private prison contractor, its officers, guards, 20 employees, and agents shall immediately notify the county sheriff and, if the 21 facility is located within the limits of a city, the city law enforcement 22 agency, along with any other law enforcement or other governmental entities, 23 agencies or personnel which the county or the city may require to be 24 informed, of any riot, rebellion or other emergency situation occurring at 25 the facility. 26 (2) In the event of an escape by an inmate from a private prison facility 27 to which this chapter applies, the private prison contractor must contact the 28 county sheriff and, if the facility is located within the limits of a city, 29 the city law enforcement agency, and any other governmental entities or agen- 30 cies which the county or city may require to be informed, upon receiving 31 knowledge of the escape, but may attempt to apprehend the inmate while the 32 search or pursuit is on the private prison contractor's private property. In 33 the event that the escaping inmate flees from the private prison contractor's 34 private property, the sheriff of the county, in cooperation with city law 35 enforcement as appropriate, shall organize and have jurisdiction over the pur- 36 suit and apprehension of the inmate. 37 (3) A private prison contractor shall reimburse an Idaho governmental 38 entity for costs incurred by the entity in responding to any riot, rebellion, 39 escape or other emergency situation occurring at the facility. The private 40 prison contractor shall also reimburse an Idaho governmental entity for costs 41 incurred by the entity with respect to the investigation, prosecution, deten- 42 tion or appellate litigation of an inmate charged with a crime resulting from 43 a riot, rebellion, escape or other criminal conduct committed within the pri- 44 vate facility. 45 20-810. CRIMES COMMITTED IN A PRIVATE PRISON FACILITY. Any offense, which 46 if committed in a county jail or other governmental detention facility would 47 be a crime, including escape, shall also be a crime if committed by or with 48 regard to inmates housed in a private prison facility. 49 20-811. OTHER CODE REFERENCES. Any reference in the Idaho Code to impris- 50 onment in a county jail or other governmental detention facility, or incarcer- 51 ation under the control and custody of the county sheriff shall be interpreted 52 to include incarceration in a private prison facility. 7 1 20-812. ENFORCEMENT -- AVAILABLE REMEDIES -- CIVIL PENALTY. (1) The 2 county prosecuting attorney shall have authority to enforce the provisions of 3 this chapter, and any county ordinances enacted, or written policies or proce- 4 dures adopted by the county with respect to the operation of a private prison 5 facility in the county, or any contract entered into between a board of county 6 commissioners and a private prison contractor by civil action and may seek all 7 available civil remedies including injunction. If the prosecuting attorney 8 prevails in the action, the private prison contractor shall be liable to the 9 county for attorney's fees and costs of suit. The action shall be brought in 10 the district court of the county in which the private prison facility is 11 located or is proposed to be located. 12 (2) The city attorney shall have authority to enforce the provisions of 13 this chapter, and any city ordinances enacted or written policies or proce- 14 dures adopted by the governing body of the city with respect to the operation 15 of a private prison facility within the city, or any contract entered into 16 between the governing body of a city and a private prison contractor by civil 17 action and he may seek all available civil remedies including injunction. If 18 the city attorney prevails in the action, the private prison contractor shall 19 be liable for attorney's fees and costs of suit. The action shall be brought 20 in the district court of the county in which the private prison facility is 21 located or is proposed to be located. 22 (3) In addition to any other remedies, a private prison contractor con- 23 structing or operating a private prison facility in this state in violation of 24 the provisions of this chapter, or any ordinances enacted or written policies 25 or procedures adopted by a county or city governing the construction or opera- 26 tion of a private prison facility, or a contract entered into pursuant to this 27 chapter shall be subject to a civil penalty in an amount not to exceed five 28 thousand dollars ($5,000) for each separate violation or for each day of a 29 continuing violation.
STATEMENT OF PURPOSE
RS 08116
This legislation will enable the counties and cities of Idaho
to contract for the design, construction, finance, management,
and operation of private penal facilities housing county or
city inmates.
This legislation also limits the ability of private companies
to build private penal facilities in this state. If the private
contractor has not contracted with a county or city and intends
to house out-of-state inmates, the private contractor must
first receive the prior express approval of the county or city
in which it intends to conduct business. It provides for the
conditions under which a private prison may provide for the
housing, care, and control of the inmates.
The legislation would also empower the county or city to
monitor the private facility, whether conducting business
pursuant to a contract with the county or city or with express
approval of the governmental entity, for appropriate inmate
custody levels, standards of care, safety standards and plans,
criminal activity within the facility, public safety issues,
and compliance with this Act.
This legislation establishes that crimes committed in a jail or
detention center are also crimes if committed in a private
prison facility as defined in this Act. The Act defines the
jurisdiction of local law enforcement personnel in the event of
an escape from a private prison facility.
If a crime is committed within a private penal facility, as
defined in this legislation, the private prison contractor
shall reimburse the county or city for the costs associated
with responding to the criminal activity (i.e., escape, riot,
assault, etc.) and costs associated with the investigation,
prosecution, detention and appellate litigation associated with
the crime.
FISCAL IMPACT
No fiscal impact.
CONTACT: Senator Denton Darrington
Phone 332-1317
S1517