Authorizes the director of public safety to enter into contracts
with private entities to manage in-state correctional facilities
constructed after the effective date of this Act; requires that
certain contractual provisions be included within the contract
awarded to the private entity. (SD2)

THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that the State can no
 2 longer afford to postpone its need for the construction of a new
 3 prison and the additional bed spaces it will provide.  For
 4 example, Halawa correctional facility is the only medium security
 5 prison in the State and is currently overcrowded by more than
 6 double its capacity, even with the 1,200 inmates housed in
 7 mainland facilities.  The legislature further finds that as
 8 overcrowding continues, the State is placed in an extremely
 9 vulnerable position with regards to exposure for civil rights
10 violations and security risks.
11      The legislature notes that under existing law, the governor
12 and the director of public safety have the authority to act to
13 reduce prison overcrowding.  Pursuant to section 353-16.3, Hawaii
14 Revised Statutes, the governor may negotiate with an out-of-state
15 jurisdiction to develop a Hawaii correctional facility in that
16 other jurisdiction.  In addition, sections 353-16.35 and 353-
17 16.36, Hawaii Revised Statutes, authorize the governor to
18 negotiate with private entities for the development and
19 construction of in-state correctional facilities, which the State

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                                     S.B. NO.           S.D. 2

 1 or a private entity may own.  Section 353-16.2, Hawaii Revised
 2 Statutes, clearly authorizes Hawaii inmates to be housed in out-
 3 of-state facilities that are owned by other state governments or
 4 private entities, and that are managed, operated, or staffed by
 5 non-State of Hawaii personnel.  The legislature further notes
 6 that similar authorization has not been enacted to permit in-
 7 state, privately developed and owned correctional facilities to
 8 be managed, operated, or staffed by non-State of Hawaii
 9 personnel.  In addition, the legislature has not authorized the
10 governor or the director of public safety to contract with a
11 private entity to manage, operate, or staff state-owned new or
12 existing correctional facilities.
13      In Konno v. County of Hawaii, 85 Haw. 69 (1997), the Supreme
14 Court concluded that absent legislative authorization for non-
15 civil servants to perform services customarily and historically
16 performed by civil servants, such services must be performed by
17 civil servants.  The State's correctional facilities have been
18 staffed customarily and historically by employees of the State
19 who are civil servants.  If in-state correctional facilities,
20 particularly those developed by private entities to relieve
21 prison overcrowding, are to be staffed by persons other than
22 civil servants, express authority for implementing such a
23 staffing plan must be conferred by the Legislature.

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                                     S.B. NO.           S.D. 2

 1      The legislature realizes that precedent exists for the
 2 private sector to assist the State with its corrections-related
 3 responsibilities.  Section 352-3, Hawaii Revised Statutes,
 4 authorizes the department of human services, to contract with
 5 private non-profit and profit agencies to provide residential
 6 youth facilities, to assist the department in providing for the
 7 incarceration, punishment, and institutional care and services to
 8 reintegrate juvenile law violators into our communities and
 9 families.  In addition, grants, subsidies, and purchase of
10 service contracts with private entities have been used for years
11 to deliver rehabilitative programs to adults and youths committed
12 to the State's youth and correctional facilities.
13      While the legislature believes that private entities should
14 be given the opportunity to compete for the management and
15 operation of any new correctional facilities, the legislature
16 firmly believes that a new correctional facility should be
17 developed and constructed within the State.
18      Therefore, the purpose of this bill is to authorize the
19 director of public safety, with the approval of the governor, to
20 enter into contracts with private entities to operate and staff
21 in-state correctional facilities constructed after the effective
22 date of this Act.
23      SECTION 2.  Chapter 353, Hawaii Revised Statutes, is amended

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                                     S.B. NO.           S.D. 2

 1 by adding a new section to be appropriately designated and to
 2 read as follows:
 3      "353-      Contracting with private entities for the
 4 management and operation of an in-state correctional facility.
 5 (a)  Notwithstanding any provision of chapters 76, 77, 89, 103,
 6 or 171, or any county ordinance to the contrary, the director,
 7 with the approval of the governor, may enter into contracts in
 8 the name of the State, consistent with chapter 103D or 103F, to
 9 obtain any and all services appropriate and necessary to manage
10 and operate an in-state correctional facility constructed
11 pursuant to section 353-16.35.  The contracts may be between the
12 State and the private entity that develops or constructs the new
13 in-state correctional facility, or with any other qualified
14 private entity.  The director shall appoint a state monitor to
15 oversee all aspects of the management and operation of the
16 facility and to report to the director any conditions which the
17 monitor perceives to be a threat to the safety of the inmates,
18 the employees, and the public.
19      (b)  Any contract executed pursuant to this section shall
20 include, but not be limited to, the following provisions:
21      (1)  The private entity shall notify the director of any
22           inmate escapes or attempted escapes;
23      (2)  The private entity shall be assessed a financial

Page 5                                                     2433
                                     S.B. NO.           S.D. 2

 1           sanction for any inmate escapes and for failure to
 2           notify the director of such escapes;
 3      (3)  The private entity shall provide access to all areas of
 4           the correctional facility to the state monitor at all
 5           times;
 6      (4)  The private entity shall comply with the standards set
 7           by any applicable national accreditation bodies
 8           selected by the director;
 9      (5)  The private entity shall provide reasonable access to
10           educational and rehabilitative programs for inmates;
11      (6)  In the event of a strike, the State shall be authorized
12           to take over management and operation of the facility;
13      (7)  Any renewal of the contract shall be contingent, in
14           part, upon the State's satisfaction with the recidivism
15           rates of former inmates housed within the privately
16           managed and operated prison; and
17      (8)  The private entity shall submit an annual financial and
18           management report to the legislature twenty days prior
19           to the convening of the regular session.
20      (c)  This section shall apply only to an in-state
21 correctional facility constructed after the effective date of
22 this section."
23      SECTION 3.  Section 353-16.35, Hawaii Revised Statutes, is

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                                     S.B. NO.           S.D. 2

 1 amended to read as follows:
 2      "[[]353-16.35[]]  Development of in-state correctional
 3 facilities.  (a) Notwithstanding any other law to the contrary,
 4 the governor, with the assistance of the director, may negotiate
 5 with any person for the development of private in-state
 6 correctional facilities or public in-state turnkey correctional
 7 facilities, to reduce prison overcrowding.  Any development
 8 proposal shall address the construction of the facility separate
 9 from the operation of the facility and shall consider and
10 include:
11      (1)  The percentage of low, medium, and high security
12           inmates and the number of prison beds needed to
13           incarcerate each of the foregoing classes of inmates;
14      (2)  The facility's impact on existing infrastructure, and
15           an assessment of improvements and additions that will
16           be necessary;
17      (3)  The facility's impact on available modes of
18           transportation, including airports, roads, and
19           highways; and
20      (4)  A useful life costs analysis.
21 For the purposes of this section, "useful life costs" means an
22 economic evaluation that compares alternate building and
23 operating methods and provides information on the design,

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                                     S.B. NO.           S.D. 2

 1 construction methods, and materials to be used with respect to
 2 efficiency in building maintenance and facilities operation.
 3      (b)  The governor may enter into and execute contracts in
 4 the name of the State with any private entity to construct and
 5 then lease or purchase correctional facilities on public or
 6 private lands for the benefit of the State.
 7      (c)  The director, with the assistance of appropriate state
 8 agencies, shall provide criteria, guidelines, and specifications
 9 for the development of the facility.
10      (d)  Any contract issued pursuant to this section shall
11 comply with the provisions of section 353-16.37."
12      SECTION 4.  Section 353-16.36, Hawaii Revised Statutes, is
13 repealed.
14      ["[353-16.36]  Contracts for construction of correctional
15 facilities by private entities.  The governor may enter into and
16 execute contracts in the name of the State with any private
17 entity to construct and then lease or purchase correctional
18 facilities on public or private lands for the benefit of the
19 State."]
20      SECTION 5.  Statutory material to be repealed is bracketed.
21 New statutory material is underscored.
22      SECTION 6.  This Act shall take effect upon its approval.