Report Title:

Correctional Treatment Facilities

Description:

Allows governor to contract for operation of a correctional treatment facility. Establishes criteria for acceptable contracts for operation of a correctional treatment facility.

HOUSE OF REPRESENTATIVES

H.B. NO.

190

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CORRECTIONAL TREATMENT FACILITIES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that correctional treatment facilities present an opportunity to attempt a bold, new approach to corrections in the State. This new approach will attempt to exploit the strengths of correctional treatment facilities and to minimize issues that have emerged as widespread concerns throughout the rapidly growing corrections industry.

This new approach will feature a shift in focus such that corrections will not be seen as the end in and of itself, but rather as the means to the new focus; a new focus on positive outcomes for public safety and for those incarcerated.

In other jurisdictions, privately operated correctional facilities provide a service often analogized to a hotel operator. This analogy is not without flaws, however it is accurate insofar as the private operator is paid by the state a certain rate per inmate per day. Under this type of contractual arrangement, the state and the private operator have conflicting desires. The state is interested in having as few people as possible incarcerated beyond their initial eligibility for parole. Not only is this fiscally prudent for the State, as incarceration is costly, but moreover it is in the larger interest of the state to ensure the timely return of inmates to free society where they may assume a productive role. The private operator, in contrast to the State's interest, enjoys profits directly proportional to the length of stay for each inmate.

The legislature finds that a contract should be designed between the state and those that operate private correctional facilities to better align these motivations. For too long, private correctional facilities have been stagnant in the "hotel" format. A new, outcome-oriented privatized prison has the potential to not only improve public safety, but also to reign in the exploding need for prison space.

Under this regime, the financial incentive, i.e., the profit motive, facing the private operator will be the effort to make inmates ready to earn parole as soon as possible. The profit margin returned to the private operator for each inmate paroled under this plan is much higher, thus it would no longer be in the interest of the private operator to house inmates for as long as possible. Once the inmate earns parole, the private operator will have another profit motive to help the parolee fulfill the terms of the parole, and the private operator will have a financial penalty to face if the inmate's parole is revoked. In short, the State will be able to better direct its moneys to support the private operator's efforts to make inmates ready to re-enter society in a productive capacity and, once there, to help them remain productive. The legislature finds that an outcome-oriented private correctional facility is in the best interests of public safety, fiscal responsibility, and the inmates. The legislature believes this type of contractual agreement is a much better idea than the more typical private prisons that have a reputation for warehousing people and for rewarding private correctional facility operators for what are socially less-desirable outcomes.

SECTION 2. Chapter 353, Hawaii Revised Statutes, is amended by adding ten new sections to be appropriately designated and to read as follows:

"§353-    Contracts for the operation of correctional facilities by private entities. The governor may enter into and execute contracts in the name of the State with any private entity to operate minimum security correctional facilities at sites selected by the governor within the state for the benefit of the State; provided that:

(1) Contracts shall ensure around-the-clock contract compliance monitoring by a state employee;

(2) An individual, corporation, partnership, association, or other private organization or entity may not construct or operate a private correctional facility unless licensed by the department. A license shall not be transferable;

(3) A person convicted in another state may not be confined in a private correctional facility in this state;

(4) Contracts shall follow the requirements established in section 353-     regarding outcome-oriented correctional facilities;

(5) The correctional facility shall be designed for and operated as an intensive treatment facility. The facility shall specialize in treating those inmates in need of substance abuse treatment in a therapeutic community. According to each inmate's needs, the facility shall also provide a wide array of culturally and gender appropriate programs, mental health services, group counseling, anger management programs, transitional programs, cognitive restructuring, remedial education, and vocational training; and

(6) Contracts shall comply with the requirements established in section 353-     regarding a citizens oversight committee.

§353-    Department duties and responsibilities; rulemaking authority. (a) The department shall adopt rules pursuant to chapter 91 that include the minimum applicable standards for the siting, construction, operation, and physical condition of a private correctional facility and for the security, safety, health, treatment, and discipline of persons confined in a private correctional facility.

(b) The rules shall require that a private correctional facility conform to applicable American Correctional Association and National Commission on Correctional Health Care standards for the facility and achieve accreditation from the American Correctional Association and National Commission on Correctional Health Care within three years from the date the facility begins operation.

§353-    Requirements of request for proposals. (a) Prior to contracting for services with a private correctional facility, the department shall publish a request for proposals. The request for proposals shall include a description of the long-range correctional needs, objectives, and goals of the department and of the state.

(b) The request for proposals shall include and identify the services requested and required and other information, including but not limited to:

(1) The physical plant, facility, and perimeter including:

(A) The facility capacity and inmate population, including classification levels accepted;

(B) Inmate housing; and

(C) Security, safety, and emergency procedures;

(2) Who is responsible for transportation of inmates:

(A) Among facilities;

(B) Upon an inmate's release, including discharge or parole;

(C) For court and administrative proceedings such as parole hearings and inmate participation as a witness;

(D) For medical transportation; and

(E) For security;

(3) Administration of the facility, including but not limited to:

(A) The organizational structure and staffing; and

(B) A policy and procedures manual addressing:

(i) Inmate discipline;

(ii) Incident reporting;

(iii)Grievance procedures;

(iv) Searches;

(v) Drug testing;

(vi) Monitoring of facility standards;

and

(vii)The retention and maintenance of inmate and facility records by the private correctional facility;

(4) Staffing issues regarding:

(A) Management;

(B) Security;

(C) Administrative personnel;

(D) Qualifications and requirements;

(E) Training; and

(F) Staff-to-inmate ratios;

(5) Inmate needs such as food, clothing, sanitation, hygiene, and laundry;

(6) Programs and services to be required such as vocational and educational training, religious services or customs, counseling, recreation, and canteen;

(7) Medical, dental, optical, pharmaceutical, psychological, and other medical-related care;

(8) Insurance requirements;

(9) Indemnification;

(10) A performance bond that is sufficient to protect the state from damages upon default or nonperformance and that may not exceed the biennial amount of the compensation to be paid the contractor;

(11) A requirement that proposers:

(A) Provide evidence or documentation demonstrating an ability to provide the services;

(B) Comply with acceptable services; and

(C) Comply with the rules, regulations, and contract requirements;

(12) A requirement that proposers provide documentation of financial stability or security; and

(13) Monitoring of facility operations.

(c) The department shall release separate requests for proposals or contracts for specific services such as transportation of inmates, substance abuse treatment programs, vocational and educational programs, medical, dental, vision, and sick call services. Each contract shall include a detailed explanation of the services to be provided.

(d) The department shall maintain a list of qualified applicants and all proposal responses. The department shall retain all records related to the evaluation process and the awarding of the contract.

§353-    License; inspection. (a) The department shall grant a license to a private correctional facility determined by the department to conform to this part and rules adopted by the department pursuant to chapter 91.

(b) The department may not grant a license unless the contractor conforms to all state and federal statutes, applicable American Correctional Association and National Commission on Correctional Health Care standards, rules, and other requirements as defined by rule. During the initial three-year period of a contract, a private correctional facility shall not be required to be accredited by the American Correctional Association or the National Commission on Correctional Health Care to be granted a license by the department.

(c) The department may not grant a license to a private correctional facility until the owner or operator of the facility has provided the department with proof of indemnity insurance that appropriately indemnifies the State and that is acceptable to the department.

(d) The department may not grant a license to a private correctional facility unless the facility has promulgated and implemented a policy to provide access to the facility by representatives of the public media.

(e) The department may not grant a license to a private correctional facility unless the facility has entered into an agreement with local and state law enforcement authorities. The private correctional facility shall demonstrate an adequate response for the mutual aid, assistance, and notification in the event of an escape, riot or disturbance, natural, or human-caused event, or other act that may potentially affect public safety.

(f) The department may not grant a license to a private correctional facility unless the legislature has appropriated funds for the housing of state inmates in private correctional facilities.

(g) The department shall at least annually inspect each private correctional facility to determine compliance with licensure requirements and rules. Members of the public media shall be:

(1) Given notification of these inspections;

(2) Allowed to accompany the inspectors; and

(3) Allowed to report on the inspection.

§353-     Contracts with owners or operators of private correctional facilities. (a) Upon request of the legislature, the legislative auditor shall review the procedures by which a contract was awarded and shall review each contract prior to execution to determine if the contract includes the requirements provided in this chapter.

(b) A contract shall specify the type and level of services to be provided by the contractor. The contract shall provide that a private contractor shall not:

(1) Choose the correctional facility to which an inmate is initially or subsequently assigned. A contractor may request the department to transfer an inmate to another correctional facility;

(2) Develop or adopt disciplinary rules that differ from the disciplinary rules, penalties, and policies of the department;

(3) Make a decision that affects the sentence imposed on an inmate or the time served by an inmate;

(4) Make recommendations to the Hawaii paroling authority with respect to the denial or granting of parole or release, except to submit reports to the Hawaii paroling authority and to respond to requests by the department or the Hawaii paroling authority;

(5) Develop or implement requirements that inmates engage in any type of work, except to the extent that the department accepts those requirements;

(6) Determine inmate eligibility for any form of release from a correctional facility; or

(7) Use an inmate classification system unless the department approves it.

(c) Contracts may not exceed a term of thirty years and shall contain provisions for renegotiations after five years.

(d) The contract shall specify that the private correctional facility shall grant access to the auditor or a person contracting with the auditor for compliance auditing. The contractor shall provide access to all areas of the facility and to all records maintained onsite or offsite that pertain to all aspects of the facility, including but not limited to operation, financial, and inmate records.

§353-    Contractor costs responsibility. (a) The contractor shall be responsible for costs incurred by the State or any political subdivision of the State for legal costs relating to escapes, riots or disturbances, or other natural or other human-caused events that occur at the facility because of the contractor's negligence, errors, omissions, intentional acts, or failure to comply with the terms of the contract.

(b) The contractor shall be responsible for all reasonable costs and expenses incurred by the State or a political subdivision of the State for defense of causes of action brought by or on behalf of an inmate that accrue while an inmate is incarcerated at a private correctional facility.

(c) This chapter shall not be intended to create a private or public cause of action for any person, partnership, corporation, or other entity, including any inmate housed within any private correctional facility or any inmate housed within the State of Hawaii.

§353-    Restrictions on inmate movements. An inmate may not leave the secure premises of a private correctional facility except:

(1) To comply with a court order;

(2) To receive medical care that is not available at the private correctional facility; or

(3) As part of a work program,

without the express written approval of the department. Any movement of an inmate outside of the secure premises of the private correctional facility must be in compliance with approved policies and procedures established by the department.

§353-    Failure to comply with law; action by department. (a) A contractor shall remain in strict compliance with this part, established applicable American Correctional Association and National Commission on Correctional Health Care standards, and contract requirements.

(b) If the department determines at any time that a private correctional facility does not conform to this part, applicable American Correctional Association and National Commission on Correctional Health Care standards, rules, and contract requirements, the department shall notify the chief executive officer and the owner or operator, or both the owner and the operator, of the private correctional facility. The notice shall state the deficiencies and order that they be remedied within a specified period of time not to exceed one year. If the deficiencies are not remedied within that time, the department may hold a contested case hearing under chapter 91, and if the department finds that suspension or revocation is warranted by nonconformance with this part, applicable American Correctional Association and National Commission on Correctional Health Care standards, rules, and contract requirements, the department may suspend or revoke the facility's license.

(c) If a private correctional facility fails to comply with this part, applicable American Correctional Association and National Commission on Correctional Health Care standards, rules, or contract requirements within the specified time period, the state may assume control of the facility for the purpose of protecting the inmates, facility staff, or the public. If the state assumes control of the facility, the department shall suspend payment for any services, and the department assumes the costs of assuming control.

(d) The department may assume emergency control of a private correctional facility if substantial violations exist that affect the life, health, or safety of the inmates, facility employees, or the public, or that otherwise substantially impact the security of the private correctional facility.

(e) In the event that a contractor fails to comply with this chapter, applicable American Correctional Association and National Commission on Correctional Health Care standards, rules, or contract requirements, the state may retain the option of purchasing or leasing the facility.

(f) If either the state or the contractor fails to renew a contract, the state may retain the option of purchasing or leasing the facility.

§353-    Outcome-oriented private correctional facilities. The private operator of a correctional facility shall be paid a per diem rate for each sentenced offender; provided that:

(1) The regular per diem rate charged is equal to the operator's portion of daily operating expenses, plus a mutually agreed profit margin;

(2) When that inmate meets inmate's requirements for parole and is paroled, the per diem rate paid to the private operator shall continue at that regular rate until such time as the inmate is discharged from parole or the inmate's parole is revoked;

(3) If an inmate's parole is revoked and the inmate is directed to return to the private facility, then the private operator shall resume custody of that inmate and shall be paid a per diem rate equal to the inmate's portion of operating expenses, minus a mutually agreed daily penalty. This penalty rate will remain in force throughout any subsequent release to parole;

(4) If an inmate's parole is revoked and the inmate is directed to return to another state-operated or state-contracted facility not operated by the private operator, then the private operator shall pay that inmate's portion of daily operating expenses at the directed facility; and

(5) When an inmate earns discharge from parole or is pardoned, a bonus may be paid to the private operator if discharge is earned before the end of the inmate's maximum term. The amount of the bonus paid to the private operator shall be determined according to a mutually agreed formula that allows for proportionally larger bonus payments according to how much time remains before the maximum term expires.

§353-    Citizens oversight committee. (a) For each proposed new correctional facility within the state of Hawaii, regardless of whether public or private in nature, there shall be a committee known as the citizens oversight committee. This oversight committee shall be consulted during site selection and facility design. If the proposed facility is not built, the committee shall be dissolved. If the new correctional facility begins operation, the committee shall meet at least quarterly to be informed of (or report on) progress or problems at the facility. The committee shall be allowed full access to the facility for inspections as deemed necessary by the committee.

(b) The oversight committee shall consist of eight members. Two members shall be appointed by the governor, two members shall be appointed by the county council of the county hosting the facility, one member shall be appointed by the governor selected from a list of social service professionals nominated by the public, and the house speaker and the senate president shall each appoint one member selected from a list of concerned community residents nominated by the public. Each member shall serve two years. The co-chairs of the committee shall be the community residents. The members shall serve without compensation but shall be reimbursed for expenses, including travel expenses that are necessary for the performance of their duties.

(c) The department or, if applicable, the contractor shall respond to the written comments and suggestions of the committee within thirty days. These communications shall be available for public inspection upon request to the department."

SECTION 3. Chapter 103, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§103-    Contract with private provider for correctional facility operation. Nothing in chapters 76 and 77, and section 46-33, including the merit principles, the classification system, or historical past practices, shall be deemed to prevent, restrict, diminish, condition, limit, or otherwise qualify the authority of a department or agency of the State or a county to enter into a contract with a private provider in accordance with chapter 353 to operate a correctional facility including contracts:

(1) To disburse appropriations for grants, subsidies, or purchases of service as those terms are defined in chapters 42D, 42F, and 103F, pursuant to chapters 42D, 42F, and 103F or any other law, charter, or ordinance authorizing grants, subsidies, or purchases of service, as those terms are defined in chapters 42D, 42F, and 103F;

(2) For goods and real property or for construction entered into pursuant to this chapter or chapter 103D or 107, or any other law, charter, or ordinance where services are provided incidentally to the acquisition of the goods or real property, or for construction; and

(3) For services which the department or agency is otherwise authorized by statute, charter, or ordinance to obtain or provide without regard to the provisions of chapter 76 or 77, or section 46-33."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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