PRINTER'S NO. 235
No. 213 Session of 1997
INTRODUCED BY ZUG, CLARK, HERSHEY, MILLER, WAUGH, GEIST, TULLI, GODSHALL, FICHTER, LYNCH, McGILL, FARGO, DRUCE AND SAYLOR, FEBRUARY 4, 1997
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 4, 1997
AN ACT 1 Regulating private correctional facilities; providing for 2 contracts with, licensing of and employee status for private 3 correctional facilities; and imposing powers and duties on 4 the Department of Corrections. 5 TABLE OF CONTENTS 6 Chapter 1. Preliminary Provisions 7 Section 101. Short title. 8 Section 102. Declaration of policy. 9 Section 103. Definitions. 10 Chapter 3. Private Correctional Facilities and Security 11 Services 12 Section 301. Facilities and services. 13 Section 302. Licensure. 14 Section 303. Contracts. 15 Section 304. Duties of contract monitor. 16 Section 305. Maximum capacity of facility. 17 Section 306. Police power. 18 Section 307. Labor disputes.
1 Section 308. Emergencies. 2 Section 309. Inspections. 3 Section 310. Regulations. 4 Section 311. Violations of contract. 5 Chapter 5. Enforcement 6 Section 501. License revocation. 7 Section 502. Criminal penalty. 8 Chapter 11. Miscellaneous Provisions 9 Section 1101. Annual reports. 10 Section 1102. Other statutes. 11 Section 1103. Effective date. 12 The General Assembly of the Commonwealth of Pennsylvania 13 hereby enacts as follows: 14 CHAPTER 1 15 PRELIMINARY PROVISIONS 16 Section 101. Short title. 17 This act shall be known and may be cited as the Private 18 Correctional Facilities Act. 19 Section 102. Declaration of policy. 20 The General Assembly finds and declares as follows: 21 (1) The incarceration of prisoners is primarily a 22 government function. 23 (2) The private sector, which has demonstrated an 24 ability to provide government services in an efficient and 25 innovative manner, may serve a valuable role in helping the 26 government operate its corrections system. 27 (3) The private sector can best serve the corrections 28 system of the Commonwealth by operating minimum security 29 private correctional facilities for the incarceration of low- 30 risk offenders sentenced to a term of imprisonment in a 19970H0213B0235 - 2 -
1 county prison. 2 Section 103. Definitions. 3 The following words and phrases when used in this act shall 4 have the meanings given to them in this section unless the 5 context clearly indicates otherwise: 6 "Contract monitor." An employee of the county who shall be 7 assigned to the private correctional facility or facility where 8 private security services are provided. 9 "Department." The Department of Corrections of the 10 Commonwealth. 11 "Private contractor." A person who owns or operates a 12 private correctional facility. 13 "Private contractor for security services." A private 14 contractor who provides security services to a correctional 15 facility owned by a county. 16 "Private correctional facility." An adult correctional 17 facility for the incarceration of low-risk offenders, owned or 18 operated by a private contractor. 19 "Security services." The provision of corrections officers. 20 CHAPTER 3 21 PRIVATE CORRECTIONAL FACILITIES AND 22 SECURITY SERVICES 23 Section 301. Facilities and services. 24 (a) Contracts by the counties.--A county may enter into 25 contracts with private contractors in accordance with this act. 26 (b) Out-of-State contracts.--No private correctional 27 facility licensed under this act may incarcerate inmates from 28 states other than this Commonwealth. 29 Section 302. Licensure. 30 (a) Requirement.--Private contractors operating within this 19970H0213B0235 - 3 -
1 Commonwealth must hold a valid license issued by the department. 2 (b) Licensure criteria.--The department shall have the 3 authority to establish criteria for licensure under this 4 section. 5 (c) Term and content.--Licenses issued by the department 6 shall be on a form prescribed by the department, shall not be 7 transferable, shall be issued only for the private correctional 8 facilities or contracted-for private security services named in 9 the application and shall specify the maximum number of 10 individuals who may be housed in the facility at one time. The 11 license shall be posted in a conspicuous place on the licensee's 12 premises. 13 (d) Fees.--Licenses and inspection fees shall be established 14 by the department. 15 Section 303. Contracts. 16 (a) Provisions enumerated.--Contracts executed under this 17 act shall include the following terms: 18 (1) The posting of an adequate performance bond by the 19 private contractor. 20 (2) Proof of adequate insurance. 21 (3) A requirement that the private contractor comply 22 with regulations of the department and with this act. 23 (4) A requirement of contract approval by the county 24 solicitor. 25 (5) A plan developed by the private contractor detailing 26 all aspects of operations in the private correctional 27 facility or in the provision of security services. 28 (6) A requirement of annual contract review by the 29 county solicitor. 30 (7) Proof that the private contractor holds a license 19970H0213B0235 - 4 -
1 issued by the department. 2 (8) A requirement of access by the county to all records 3 of the private contractor. 4 (9) A requirement that the county provide a contract 5 monitor at the private correctional facility or facility 6 where private security services are provided. 7 (b) Approval by county solicitor.--Contracts must be 8 approved by the county solicitor. Contract approval shall be 9 conditioned upon all of the following: 10 (1) The private contractor's assumption of liability 11 caused by or arising out of all aspects of the ownership or 12 operation of the private correctional facility or the 13 provision of security services, including, but not limited 14 to, escape or other emergency situations, legal fees and 15 damage awards, involving the private contractor and the 16 county. 17 (2) Liability insurance covering the private contractor 18 and its officers, employees and agents in an amount 19 sufficient to cover liability arising out of the ownership or 20 operation of a private correctional facility or the provision 21 of security services. A copy of the proposed insurance policy 22 for the first year shall be submitted for approval with the 23 contract. 24 (c) Disapproval by county solicitor.--Disapproval of a 25 contract may be based on any reasonable grounds, including, but 26 not limited to, the following: 27 (1) Inadequacy or inappropriateness of the proposed plan 28 of operation. 29 (2) Failure to meet department regulations. 30 (3) Unsuitability of the proposed private contractor or 19970H0213B0235 - 5 -
1 its employees. 2 (4) Absence of required or desired contract provisions. 3 (5) Unavailability of adequate funds. 4 (6) Lack of proof of appropriate insurance. 5 (7) Absence of licensure by the department. 6 (d) Termination.--Contracts executed under this act shall 7 provide for termination for cause by the Commonwealth or a 8 county upon 90 days' notice to the private contractor. 9 Termination shall be allowed for reasons which include, but are 10 not limited to, the following: 11 (1) Failure to be licensed or to comply with regulations 12 of the department. 13 (2) Failure to meet other contract provisions. 14 (3) Failure to meet the provisions of this act. 15 Section 304. Duties of contract monitor. 16 The contract monitor shall have the duty to: 17 (1) Monitor compliance of the private contractor with 18 terms of the contract. 19 (2) Supervise the administration of misconducts, 20 discipline and earned time within the correctional facility. 21 (3) Coordinate prerelease and parole release functions. 22 Section 305. Maximum capacity of facility. 23 A private correctional facility may not exceed a capacity of 24 250 inmates. 25 Section 306. Police power. 26 Security personnel employed by private contractors shall be 27 deemed peace officers under section 2.1 of the act of May 16, 28 1921 (P.L.579, No.262), referred to as the County Prison Board 29 Law. 30 Section 307. Labor disputes. 19970H0213B0235 - 6 -
1 (a) Notice.-- 2 (1) A private contractor shall notify the county and the 3 department 60 days prior to the termination of a labor 4 contract. 5 (2) A private contractor shall notify the county and the 6 department immediately upon learning of a potential or 7 impending strike. 8 (b) Assistance.--In the event of a strike, the department 9 shall assist a county to assume operation of the private 10 correctional facility and shall use Commonwealth emergency 11 resources necessary to operate the facility until the strike has 12 ended. Costs incurred by the Commonwealth, the department or a 13 county shall be reimbursed by the private contractor. 14 Section 308. Emergencies. 15 (a) Notification of police.--Upon the occurrence of an 16 escape of an inmate or upon a violent disturbance within a 17 private correctional facility or a facility using private 18 security services, the facility shall immediately notify the 19 local police within the county and the Pennsylvania State 20 Police. 21 (b) Authority of the department.--Upon the occurrence of an 22 emergency in a private correctional facility or a facility using 23 private security services, the department shall have the 24 authority to enter and control the facility until the emergency 25 ends. 26 (c) Costs.--Costs incurred by the Commonwealth, the 27 department or a county shall be reimbursed by the private 28 contractor. 29 Section 309. Inspections. 30 (a) Duty to inspect.--The department shall annually inspect 19970H0213B0235 - 7 -
1 private correctional facilities and facilities using private 2 security services to insure compliance with its regulations. The 3 department shall submit a written report on the findings of its 4 inspection to the private contractor within 60 days of the 5 inspection. The private contractor shall be given a reasonable 6 period of time within which to correct deficiencies or to come 7 into compliance with the applicable regulations. If the private 8 contractor does not come into compliance with the applicable 9 regulations, the department may revoke its license after a 10 hearing under 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and 11 procedure of Commonwealth agencies) and Ch. 7 Subch. A (relating 12 to judicial review of Commonwealth agency action). 13 (b) Authority to enter.--Personnel of the department or 14 other administrative agencies authorized by the Commissioner of 15 Corrections to inspect correctional facilities may enter a 16 private correctional facility unannounced at any time to 17 investigate any facet of the operation of a private correctional 18 facility. 19 Section 310. Regulations. 20 (a) Contents.--The department shall, within six months of 21 the effective date of this section, promulgate regulations for 22 the provision and operation of private correctional facilities 23 and for the provision of private security services. The 24 regulations shall include, but not be limited to: 25 (1) Security requirements including staffing levels and 26 emergency plans. 27 (2) Minimum standards for the care of inmates, 28 procedures for misconduct adjudication and disposition, 29 visitation policies, the provision of medical and mental 30 health services, treatment and education programs. 19970H0213B0235 - 8 -
1 (3) A program of training and certification for 2 corrections officers employed by private contractors. Cost of 3 training shall be paid by the private contractor. 4 (b) Training.--A program of training and certification for 5 corrections officers employed by private contractors. Cost of 6 training shall be paid by the private contractor. 7 Section 311. Violations of contract. 8 (a) Notice.--If the department learns of a violation of a 9 contract by a private contractor, it shall immediately give 10 written notice to the Commonwealth or county, the private 11 contractor and the Attorney General. Violation of the contract 12 shall be grounds for termination of the contract under section 13 303(d). 14 (b) Compliance.--Notice to the private contractor shall 15 require action to bring the facility into compliance with the 16 relevant contractual provision in the time period determined by 17 the department. 18 CHAPTER 5 19 ENFORCEMENT 20 Section 501. License revocation. 21 (a) Practice and procedure.--The department shall, by 22 regulation, establish procedures for revocation of a license 23 under this act, to include provisions for notice and hearing 24 under 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and 25 procedure of Commonwealth agencies). 26 (b) Grounds.--Grounds for revocation include, but are not 27 limited to: 28 (1) Violation of this act or regulations of the 29 department. 30 (2) Fraud or misrepresentation. 19970H0213B0235 - 9 -
1 (3) Failure to maintain adequate insurance. 2 (4) Gross incompetence or negligence. 3 (5) Moral turpitude. 4 (6) Violation of other laws of the Commonwealth. 5 (7) Violation of the civil rights of an individual 6 inmate. 7 (8) Failure to comply with official inspection reports 8 of the department under section 1101(a). 9 Section 502. Criminal penalty. 10 A private contractor who operates a private correctional 11 facility or provides private security services in this 12 Commonwealth without a license under section 302 commits a 13 misdemeanor of the first degree and shall, upon conviction, be 14 sentenced to pay a fine of $10,000 and costs of prosecution or, 15 if the private contractor fails to pay the fine, to imprisonment 16 for not more than one year. Each day of operation of a private 17 correctional facility or of provision of private security 18 services without a license shall constitute a separate offense. 19 If the private contractor is a partnership, the partners are 20 liable under this section. If the private contractor is a 21 corporation or unincorporated association, the chief executive 22 officer is liable under this section. 23 CHAPTER 11 24 MISCELLANEOUS PROVISIONS 25 Section 1101. Annual reports. 26 (a) Facilities and contractors.--A private contractor shall 27 submit an annual report to the Commonwealth or county with which 28 it has a contract. 29 (b) Department.--The department shall submit to the General 30 Assembly an annual report on the status of private contractors 19970H0213B0235 - 10 -
1 in this Commonwealth, including problems related to private 2 contractors. 3 Section 1102. Other statutes. 4 Private correctional facilities are deemed to be correctional 5 institutions for purposes of 18 Pa.C.S. (relating to crimes and 6 offenses) and 42 Pa.C.S. (relating to judiciary and judicial 7 procedure) and are deemed to be prisons for purposes of the act 8 of July 11, 1923 (P.L.1044, No.425), referred to as the Prisoner 9 Transfer Law. Other statutes relating to penitentiaries, 10 prisons, workhouses, houses of corrections and institutions for 11 prisoners apply to private correctional facilities to the extent 12 necessary to carry out the intent and provisions of this act. 13 Section 1103. Effective date. 14 This act shall take effect as follows: 15 (1) Section 310 and this section shall take effect 16 immediately. 17 (2) The remainder of this act shall take effect in one 18 year. L26L61WMB/19970H0213B0235 - 11 -