PRINTER'S NO. 2195
No. 1721 Session of 1985
INTRODUCED BY PRATT, LESCOVITZ, MORRIS, COLAFELLA, BLAUM AND
PICCOLA, OCTOBER 7, 1985
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 7, 1985
AN ACT
1 Regulating private prisons; providing for contracts between the
2 Commonwealth and counties and private contractors; and
3 providing for approval by the Attorney General and for the
4 licensing and inspection of private prisons by the Department
5 of Corrections.
6 TABLE OF CONTENTS
7 Section 1. Short title.
8 Section 2. Declaration of policy.
9 Section 3. Definitions.
10 Section 4. Interstate corrections compact.
11 Section 5. Authority to contract.
12 Section 6. Contracts for private prison services.
13 Section 7. License.
14 Section 8. Corrections officer training and certification.
15 Section 9. Restrictions.
16 Section 10. Right to enter and inspect.
17 Section 11. Records.
18 Section 12. Inspections.
19 Section 13. Refusal to issue or renew license; revocation;
1 notice and appeal.
2 Section 14. Emergency suspension.
3 Section 15. Police power.
4 Section 16. Regulations.
5 Section 17. Emergencies.
6 Section 18. Violations.
7 Section 19. Applicability.
8 Section 20. Criminal penalty.
9 Section 21. Effective date.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Short title.
13 This act shall be known and may be cited as the Private
14 Prisons Act.
15 Section 2. Declaration of policy.
16 The General Assembly finds and declares as follows:
17 (1) The incarceration of prisoners is primarily a
18 government function.
19 (2) The private sector, which has demonstrated an
20 ability to provide government services in an efficient and
21 innovative manner, may serve a valuable role in helping
22 government operate its corrections system.
23 Section 3. Definitions.
24 The following words and phrases when used in this act shall
25 have the meanings given to them in this section unless the
26 context clearly indicates otherwise:
27 "Department." The Department of Corrections of the
28 Commonwealth.
29 "Private prison." A facility for the full custody
30 incarceration of adult prisoners which is owned and operated by
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1 a person other than the United States, the Commonwealth or
2 another municipality. The term does not include a private
3 facility certified by, licensed by or operated under contract
4 with the Department of Public Welfare or the Department of
5 Health.
6 Section 4. Interstate corrections compact.
7 An inmate from a state other than this Commonwealth may not
8 be received by a private prison until the Commonwealth and the
9 sending state amend their respective interstate corrections
10 compact under the act of December 30, 1974 (P.L.1075, No.348),
11 known as the Interstate Corrections Compact.
12 Section 5. Authority to contract.
13 (a) Contracts by the Commonwealth and counties.--The
14 Commonwealth and a county may enter into contracts with private
15 prisons under this act.
16 (b) Out-of-State contracts.--Private prisons may enter into
17 contracts with states other than this Commonwealth for the
18 provision of corrections services if the contractor complies
19 with this act and the contract is in conformance with the act of
20 December 30, 1974 (P.L.1075, No.348), known as the Interstate
21 Corrections Compact.
22 Section 6. Contracts for private prison services.
23 (a) Provisions enumerated.--Contracts executed under this
24 act must include the following terms:
25 (1) The posting of an adequate performance bond by the
26 contractor.
27 (2) A requirement that the contractor comply with
28 regulations of the department.
29 (3) A requirement that the contractor hold a valid
30 license issued by the department.
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1 (4) In contracts between private prisons and other
2 states, a requirement for the other states to assume
3 liability for the cost of mental health services provided to
4 an inmate from those states where the mental health services
5 are provided by the Commonwealth or a county. Contractual
6 requirements under this paragraph shall conform with the act
7 of December 30, 1974 (P.L.1075, No.348), known as the
8 Interstate Corrections Compact.
9 (5) Approval by the Attorney General.
10 (b) Approval by the Attorney General.--Approval by the
11 Attorney General must be conditioned upon the following:
12 (1) The contractor's assumption of liability caused by
13 or arising out of the operation of the private prison.
14 (2) Liability insurance covering the contractor and its
15 officers, employees and agents in an amount sufficient to
16 cover liability caused or arising out of the operation of the
17 private prison. A copy of the proposed insurance policy for
18 the first year shall be submitted for approval with the
19 contract, and no contract shall be valid or enforceable
20 without prior approval.
21 (c) Disapproval by the Attorney General.--Disapproval of a
22 contract may be based on any reasonable grounds, including:
23 (1) Inadequacy or inappropriateness of the proposed plan
24 or standards of operation.
25 (2) Unsuitability of the proposed contractor or its
26 employees.
27 (3) Absence of required or desirable contract
28 provisions.
29 (4) Unavailability of funds.
30 (d) Termination.--Contracts executed under this act must
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1 provide for termination for cause by the Commonwealth or county
2 upon 90 days' notice to the contractor. Termination must be
3 allowed for reasons which include the following:
4 (1) Failure of the contractor to comply with regulations
5 of the department.
6 (2) Failure to meet other contract provisions when the
7 failure seriously affects the operation of the private
8 prison.
9 Section 7. License.
10 (a) Requirement.--Private prisons operating within this
11 Commonwealth are required to hold a valid license issued by the
12 department, regardless of whether or not the facility is under
13 contract to the Commonwealth or a county.
14 (b) Issuance.--When, after investigation, the department is
15 satisfied that the applicant for a license is a responsible
16 person, that the place to be used as a private prison is
17 suitable for the purpose and is appropriately equipped and that
18 the applicant and the place to be used as a private prison meet
19 the requirements of law, it shall issue a license and shall keep
20 a record of the investigation, the application and the
21 disposition.
22 (c) Term and content.--Licenses issued by the department
23 shall be renewed biennially, shall be on a form prescribed by
24 the department, shall not be transferable, shall be issued only
25 for the premises and for the private prison named in the
26 application and shall specify the maximum number of individuals
27 who may be housed in the facility at one time. The license shall
28 be posted in a conspicuous place on the applicant's premises.
29 (d) Fees.--License and inspection fees shall be established
30 by the department and shall reflect the actual cost to the
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1 department of licensing and inspection.
2 Section 8. Corrections officer training and certification.
3 (a) Training.--The department shall, by regulation,
4 establish a program of training for corrections officers at
5 private prisons. No person may be employed as a corrections
6 officer at a private prison until the department certifies that
7 the person has successfully completed the program of training
8 required by this section. Costs of training shall be paid by the
9 private prison proposing to employe the person.
10 (b) Certification.--The certification required by this
11 section shall expire after three years. The department shall
12 adopt regulations providing for recertification after completion
13 of further training as the department, by regulation, deems
14 appropriate.
15 Section 9. Restrictions.
16 The department shall, by regulation, determine and define
17 those types of inmates which may be incarcerated in private
18 prisons licensed under this act.
19 Section 10. Right to enter and inspect.
20 For the purpose of determining the suitability of the
21 applicants and of the premises or the continuing conformity of
22 the licensees to this act and to the applicable regulations of
23 the department, an authorized agent of the department shall have
24 the right, at any time and without notice, to enter, visit and
25 inspect a private prison licensed or requiring a license under
26 this act; shall have full and free access to the records of the
27 private prison and to the employees and residents; and shall
28 have full opportunity to interview, inspect or examine those
29 individuals. An authorized agent of the department shall confer
30 with the operators of a private prison regarding the minimum
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1 standards of the department, encourage the adoption of higher
2 standards and recommend methods of improving care and services.
3 Section 11. Records.
4 A person licensed under this act to maintain, operate and
5 conduct a private prison shall keep the records and make the
6 reports that are required by department regulations.
7 Section 12. Inspections.
8 The department shall, on at least an annual basis, inspect
9 private prisons to insure continued compliance with its
10 regulations. The department shall submit a written report of its
11 findings to the private prison within 60 days of the inspection.
12 The private prison shall be given a reasonable period of time,
13 as determined by the department, in which to correct
14 deficiencies or to come into compliance with the applicable
15 standard.
16 Section 13. Refusal to issue or renew license; revocation;
17 notice and appeal.
18 (a) Reasons to refuse or revoke.--The department shall
19 refuse to issue or renew a license or shall revoke a license for
20 any of the following reasons:
21 (1) Violation of or noncompliance with the provisions of
22 this act or regulations under it.
23 (2) Fraud or deceit in obtaining or attempting to obtain
24 a license.
25 (3) Lending, borrowing or using the license of another.
26 (4) Knowingly aiding or abetting the improper granting
27 of a license.
28 (5) Gross incompetence, negligence or misconduct,
29 whether financial or otherwise, in operating the facility.
30 (6) Mistreating or abusing individuals housed in the
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1 facility.
2 (7) Failure to maintain adequate liability insurance.
3 (b) Notice and appeal.--If the department has cause to
4 refuse to issue or renew a license or revoke a license, it shall
5 notify the applicant or licensee and shall specify the reason.
6 Notice shall be in writing and shall be given by certified mail.
7 The private prison shall have the right of appeal as set forth
8 in Title 2 of the Pennsylvania Consolidated Statutes (relating
9 to administrative law and procedure), particularly Subchapter A
10 of Chapter 5 (relating to practice and procedure of Commonwealth
11 agencies) and Subchapter A of Chapter 7 (relating to judicial
12 review of Commonwealth agency action).
13 Section 14. Emergency suspension.
14 The department may temporarily suspend a license under
15 circumstances determined by the department to be an immediate
16 and clear danger to the public health and safety. The department
17 shall issue an order to that effect without a hearing, but upon
18 notice to the licensee, which notice shall include a written
19 statement of allegations against the licensee. Section 13(b)
20 does not apply to the temporary suspension. The department shall
21 then commence formal action to revoke the license under section
22 13(b). Actions shall be taken promptly. Within 30 days following
23 the issuance of an order temporarily suspending a license, the
24 department shall conduct a preliminary hearing to determine that
25 there is a prima facie case supporting the suspension. The
26 licensee may be present at the preliminary hearing and may be
27 represented by counsel, cross-examine witnesses, inspect
28 physical evidence, call witnesses, offer evidence and testimony
29 and make a record of the proceedings. If it is determined that
30 there is not a prima facie case, the suspended license shall be
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1 immediately restored. The temporary suspension shall remain in
2 effect until vacated by the department, but in no event longer
3 than 180 days. Section 17 shall be applicable during the
4 temporary suspension.
5 Section 15. Police power.
6 Those persons employed as guards by private independent
7 contractors in private prisons shall be deemed peace officers as
8 provided in section 2.1 of the act of May 16, 1921 (P.L.579,
9 No.262), entitled, as amended, "An act providing for the better
10 management of the jails or county prisons in the several
11 counties of this Commonwealth of the third, fourth, fifth
12 classes and in certain counties of the sixth, seventh and eighth
13 classes by creating, in such counties, a board to be known by
14 the name and style of inspectors of the jail or county prison,
15 with authority to appoint a warden of such prison, and by
16 vesting in said board, and the officers appointed by it, the
17 safe-keeping, discipline, and employment of prisoners and the
18 government and management of said jails or county prisons."
19 Section 16. Regulations.
20 The department may promulgate regulations establishing
21 minimum standards for building, equipment, operation, care,
22 program and services and for the issuance of licenses. A private
23 prison may not operate within this Commonwealth for a period of
24 up to 180 days from the effective date of this act or until the
25 department promulgates regulations under this section, whichever
26 occurs first.
27 Section 17. Emergencies.
28 (a) Notification of police.--Upon the occurrence of an
29 escape of an inmate or upon a violent disturbance within a
30 private prison, the private prison shall immediately notify the
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1 local police within the area and the Pennsylvania State Police.
2 (b) Authority of the department.--Upon the occurrence of an
3 emergency in a private prison, the department has the authority
4 to enter the facility and control the facility until the
5 emergency has ended.
6 (c) Costs.--Costs incurred by the department and by the
7 Commonwealth and local agencies, including police, during
8 emergencies other than natural disasters, shall be reimbursed by
9 the private prison.
10 Section 18. Violations.
11 (a) Notice.--If the department learns of violations of its
12 regulations by a private prison, it shall immediately give
13 written notice to the Commonwealth or county, the private prison
14 and the Attorney General. Violation of regulations is grounds
15 for termination of the contract under section 6(a)(2).
16 (b) Compliance.--Notice to the private prison shall require
17 action to bring the facility into compliance with the relevant
18 regulation in the time period determined by the department.
19 Section 19. Applicability.
20 Private prisons are deemed to be correctional institutions
21 for purposes of Title 18 (relating to crimes and offenses) and
22 Title 42 (relating to judiciary and judicial procedure) of the
23 Pennsylvania Consolidated Statutes and are deemed to be prisons
24 for purposes of the act of July 11, 1923 (P.L.1044, No.425),
25 referred to as the Prisoner Transfer Law. Other statutes
26 relating to penitentiaries, prisons, workhouses, houses of
27 corrections or institutions for prisoners apply to private
28 prisons to the extent necessary to carry out the intent and
29 provisions of this act.
30 Section 20. Criminal penalty.
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1 A person who operates a private prison within this
2 Commonwealth without a license required by this act commits a
3 summary offense and shall, upon conviction, be sentenced to pay
4 a fine of not less than $250 nor more than $1,000, along with
5 costs of prosecution. In default of the payment of this fine, a
6 person convicted shall undergo imprisonment for not less than 10
7 days nor more than 30 days. Each day of operating a private
8 prison without a license required by this act constitutes a
9 separate offense. In the case of a corporation, the person
10 liable for the penalty shall be the president or chief executive
11 officer.
12 Section 21. Effective date.
13 This act shall take effect immediately.
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