PRINTER'S NO. 2088
No. 1710 Session of 1989
INTRODUCED BY PICCOLA, HAGARTY, CALTAGIRONE, MOEHLMANN, BORTNER,
McVERRY, MAIALE, HECKLER, NOYE, GIGLIOTTI, MERRY,
D. W. SNYDER, GODSHALL, GEIST, JOHNSON, TRICH, DEMPSEY,
FARGO, NAHILL, E. Z. TAYLOR, KENNEY, CORRIGAN, VROON,
SAURMAN, HOWLETT, DeLUCA, PHILLIPS, CIVERA, RAYMOND, LANGTRY,
BUSH, J. H. CLARK, FARMER, LEE AND FLICK, JUNE 19, 1989
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 19, 1989
AN ACT
1 Regulating private prisons; providing for contracts with,
2 licensing of and employee status for private prisons; and
3 imposing powers and duties on the Department of Corrections.
4 TABLE OF CONTENTS
5 Chapter 1. Preliminary Provisions
6 Section 101. Short title.
7 Section 102. Declaration of policy.
8 Section 103. Definitions.
9 Chapter 3. Private Correctional Facilities and Security Services
10 Section 301. Facilities and services.
11 Section 302. Contracts.
12 Section 303. License.
13 Section 304. Maximum capacity of facility.
14 Section 305. Police power.
15 Section 306. Labor disputes.
16 Section 307. Emergencies.
1 Section 308. Inspections.
2 Section 309. Regulations.
3 Section 310. Violations of contract.
4 Chapter 5. Enforcement
5 Section 501. License revocation.
6 Section 502. Criminal penalty.
7 Chapter 11. Miscellaneous Provisions
8 Section 1101. Annual reports.
9 Section 1102. Other statutes.
10 Section 1103. Construction of act.
11 Section 1104. 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 Prison 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 prisons for the incarceration of low-risk and special
30 needs offenders, such as offenders convicted of driving under
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1 the influence and other drug-related and alcohol-related
2 offenses.
3 Section 103. Definitions.
4 The following words and phrases when used in this act shall
5 have the meanings given to them in this section unless the
6 context clearly indicates otherwise:
7 "Department." The Department of Corrections of the
8 Commonwealth.
9 "Private contractor." A person who owns or operates a
10 private correctional facility.
11 "Private contractor for security services." A private
12 contractor who provides security services to a correctional
13 facility owned by the Commonwealth or a political subdivision.
14 "Private correctional facility." An adult correctional
15 facility owned or operated by a private contractor contracting
16 with the Commonwealth or a political subdivision for the
17 provision of a facility for the incarceration of low-risk and
18 special-needs offenders and the provision of related services.
19 CHAPTER 3
20 PRIVATE CORRECTIONAL FACILITIES AND SECURITY SERVICES
21 Section 301. Facilities and services.
22 (a) Contracts by the Commonwealth and counties.--The
23 Commonwealth or a county may enter into contracts with private
24 contractors in accordance with this act.
25 (b) Out-of-State contracts.--No inmate from a state other
26 than Pennsylvania may be received by a private correctional
27 facility in this Commonwealth.
28 Section 302. Contracts.
29 (a) Provisions enumerated.--Contracts executed under this
30 act must include the following terms:
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1 (1) The posting of an adequate performance bond by the
2 private contractor.
3 (2) Proof of adequate insurance.
4 (3) A requirement that the private contractor comply
5 with regulations of the department and with this act.
6 (4) A requirement of contract approval by the Attorney
7 General.
8 (5) A plan developed by the private contractor detailing
9 all aspects of operations in the private correctional
10 facility or in the provision of security services.
11 (6) A requirement of annual contract review by the
12 Attorney General.
13 (b) Approval by Attorney General.--Contracts must be
14 approved by the Attorney General. Contract approval shall be
15 conditioned upon all of the following:
16 (1) The private contractor's assumption of liability
17 caused by or arising out of all aspects of the ownership or
18 operation of the private correctional facility or the
19 provision of security services, including, but not limited
20 to, escape or other emergency situations, legal fees and
21 damage awards, involving the private contractor and the
22 contracting government body.
23 (2) Liability insurance covering the private contractor
24 and its officers, employees and agents in an amount
25 sufficient to cover liability arising out of the ownership or
26 operation of a private correctional facility or the provision
27 of security services. A copy of the proposed insurance policy
28 for the first year shall be submitted for approval with the
29 contract.
30 (c) Disapproval by Attorney General.--Disapproval of a
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1 contract may be based on any reasonable grounds, including, but
2 not limited to, the following:
3 (1) Inadequacy or inappropriateness of the proposed plan
4 of operation.
5 (2) Failure to meet department regulations.
6 (3) Unsuitability of the proposed private contractor or
7 its employees.
8 (4) Absence of required or desirable contract
9 provisions.
10 (5) Unavailability of adequate funds.
11 (6) Lack of proof of appropriate insurance.
12 (d) Termination.--Contracts executed under this act must
13 provide for termination for cause by the Commonwealth or a
14 county upon 90 days' notice to the private contractor.
15 Termination shall be allowed for reasons which include, but are
16 not limited to, the following:
17 (1) Failure to be licensed or to comply with regulations
18 of the department.
19 (2) Failure to meet other contract provisions.
20 (3) Failure to meet the provisions of this act.
21 Section 303. License.
22 (a) Requirement.--Private contractors operating within this
23 Commonwealth must hold a valid license issued by the department.
24 (b) Issuance.--The department shall issue a license to the
25 private contractor if it determines that the applicant has a
26 contract, approved by the Attorney General, with the
27 Commonwealth or a county of this Commonwealth.
28 (c) Term and content.--Licenses issued by the department
29 shall be on a form prescribed by the department, shall not be
30 transferable, shall be issued only for the private correctional
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1 facilities or contracted-for private security services named in
2 the application and shall specify the maximum number of
3 individuals who may be housed in the facility at one time. The
4 license shall be posted in a conspicuous place on the licensee's
5 premises.
6 (d) Fees.--Licenses and inspection fees shall be established
7 by the department and shall reflect the actual cost to the
8 department of licensing and inspection.
9 (e) Training.--The department shall, by regulation,
10 establish a program of training for corrections officers
11 employed by private contractors. No individual may be employed
12 as a corrections officer at a private correctional facility
13 unless the department certifies that the individual has
14 successfully completed the training program. Cost of training
15 shall be paid by the private contractor.
16 Section 304. Maximum capacity of facility.
17 A private correctional facility may not exceed a capacity of
18 500 beds.
19 Section 305. Police power.
20 Security personnel employed by private contractors shall be
21 deemed peace officers under section 2.1 of the act of May 16,
22 1921 (P.L.579, No.262), entitled "An act providing for the
23 better management of the jails or county prisons in the several
24 counties of this Commonwealth of the third, fourth, fifth
25 classes and in certain counties of the sixth, seventh and eighth
26 classes by creating, in such counties, a board to be known by
27 the name and style of inspectors of the jail or county prison,
28 with authority to appoint a warden of such prison, and by
29 vesting in said board, and the officers appointed by it, the
30 safe-keeping, discipline, and employment of prisoners and the
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1 government and management of said jails or county prisons."
2 Section 306. Labor disputes.
3 (a) Notice.--
4 (1) A private contractor shall notify the department 60
5 days prior to the termination of a labor contract.
6 (2) A private contractor shall notify the department
7 immediately upon learning of a potential or 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 department, the Commonwealth or a
13 county shall be reimbursed by the private contractor.
14 Section 307. 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 department, the
27 Commonwealth or a county shall be reimbursed by the private
28 contractor.
29 Section 308. Inspections.
30 (a) Duty to inspect.--The department shall annually inspect
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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) Inspections.--Personnel of the department or other
14 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 309. Regulations.
20 The department shall, within six months of the effective date
21 of this section, promulgate regulations for the provision and
22 operation of private correctional facilities and for the
23 provision of private security services. The regulations shall
24 include, but not be limited to:
25 (1) Guidelines as to which classes of low-risk or
26 special-needs inmates shall be eligible for incarceration in
27 a private correctional facility.
28 (2) Minimum standards for the care of inmates, the
29 protection of inmates rights, the staff, the availability of
30 mental health services and the physical structure and
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1 operation of private correctional facilities within this
2 Commonwealth.
3 Section 310. Violations of contract.
4 (a) Notice.--If the department learns of a violation of a
5 contract by a private contractor, it shall immediately give
6 written notice to the Commonwealth or county, the private
7 contractor and the Attorney General. Violation of the contract
8 shall be grounds for termination of the contract under section
9 4(d)(2).
10 (b) Compliance.--Notice to the private contractor shall
11 require action to bring the facility into compliance with the
12 relevant contractual provision in the time period determined by
13 the department.
14 CHAPTER 5
15 ENFORCEMENT
16 Section 501. License revocation.
17 (a) Practice and procedure.--The department shall, by
18 regulation, establish procedures for revocation of a license
19 under this act, to include provisions for notice and hearing
20 under 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and
21 procedure of Commonwealth agencies).
22 (b) Grounds.--Grounds for revocation include, but are not
23 limited to:
24 (1) Violation of this act or regulations of the
25 department.
26 (2) Fraud or misrepresentation.
27 (3) Failure to maintain adequate insurance.
28 (4) Gross incompetence or negligence.
29 (5) Moral turpitude.
30 (6) Violation of other laws of this Commonwealth.
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1 (7) Violation of the civil rights of an individual
2 inmate.
3 (8) Failure to comply with official inspection reports
4 of the department under section 10(a).
5 Section 502. Criminal penalty.
6 A private contractor who operates a private correctional
7 facility or provides private security services in this
8 Commonwealth without a license under section 5 commits a
9 misdemeanor of the first degree and shall, upon conviction, be
10 sentenced to pay a fine of $10,000 and costs of prosecution or,
11 if the private contractor fails to pay the fine, to imprisonment
12 for not more than one year. Each day of operation of a private
13 correctional facility or of provision of private security
14 services without a license shall constitute a separate offense.
15 If the private contractor is a partnership, the partners are
16 liable under this section. If the private contractor is a
17 corporation or unincorporated association, the chief executive
18 officer is liable under this section.
19 CHAPTER 11
20 MISCELLANEOUS PROVISIONS
21 Section 1101. Annual reports.
22 (a) Facilities and contractors.--A private contractor shall
23 submit an annual report to the Commonwealth or county with which
24 it has a contract.
25 (b) Department.--The department shall submit to the General
26 Assembly an annual report on the status of private contractors
27 in this Commonwealth, including problems related to private
28 contractors.
29 Section 1102. Other statutes.
30 Private correctional facilities are deemed to be correctional
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1 institutions for purposes of 18 Pa.C.S. (relating to crimes and
2 offenses) and 42 Pa.C.S. (relating to judiciary and judicial
3 procedure) and are deemed to be prisons for purposes of the act
4 of July 11, 1923 (P.L.1044, No.425), referred to as the Prisoner
5 Transfer Law. Other statutes relating to penitentiaries,
6 prisons, workhouses, houses of corrections and institutions for
7 prisoners apply to private correctional facilities to the extent
8 necessary to carry out the intent and provisions of this act.
9 Section 1103. Construction of act.
10 Neither the Commonwealth nor a county may contract with a
11 private correctional facility for the incarceration of prisoners
12 until the effective date of this act. This act shall not be
13 construed to prohibit a county from utilizing the services of a
14 private contractor for security services as long as the services
15 will be directly supervised by employees of the county and the
16 facility remains under the management of employees of the
17 county.
18 Section 1104. Effective date.
19 This act shall take effect as follows:
20 (1) Sections 309, 1103 and this section shall take
21 effect immediately.
22 (2) The remainder of this act shall take effect in one
23 year.
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