HOUSE CONSUMER AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 352
55th legislature - STATE OF NEW MEXICO - first session, 2021
AN ACT
RELATING TO CORRECTIONAL INSTITUTIONS; ENACTING THE PRIVATE DETENTION FACILITY MORATORIUM ACT; REMOVING AUTHORIZATION TO ENTER INTO CONTRACTS OR AGREEMENTS WITH PRIVATE INDEPENDENT CONTRACTORS FOR THE OPERATION OF DETENTION FACILITIES; CREATING THE PRIVATE DETENTION FACILITIES TRANSITION TASK FORCE; REPEALING SECTIONS 33-1-17 AND 33-3-26 NMSA 1978 (BEING LAWS 1985, CHAPTER 149, SECTION 1 AND LAWS 1984, CHAPTER 22, SECTION 17, AS AMENDED); DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 3 of this act may be cited as the "Private Detention Facility Moratorium Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Private Detention Facility Moratorium Act:
A. "detention facility" means a facility other than a work-release facility in which a person is incarcerated or otherwise involuntarily confined for purposes other than medical or mental health necessity or addiction therapy;
B. "operate" means to house, protect and discipline people involuntarily confined in a detention facility; and
C. "private detention facility" means a detention facility that is operated by a nongovernmental entity."
SECTION 3. [NEW MATERIAL] CERTAIN AGREEMENTS FOR THE OPERATION OF A PRIVATE DETENTION FACILITY PROHIBITED--EXCEPTIONS.--
A. Neither the state, nor any political subdivision of the state or other governmental entity, county sheriff or any officer, employee or agent, shall:
(1) enter into an agreement with a private independent contractor that would provide for the operation or management of a private detention facility; or
(2) modify any existing agreement with a private independent contractor for the operation or management of a private detention facility in a manner that would increase the capacity of the facility to house or detain individuals.
B. This section does not apply to:
(1) a facility that has as its principal function the provision of:
(a) educational services or rehabilitative, physical, mental or behavioral health services to a juvenile inmate; or
(b) educational, vocational, medical or
other services ancillary to detention to an adult or juvenile
inmate;
(2) a school facility used for the disciplinary detention of a student;
(3) a facility used to isolate or quarantine a
person for public health reasons; or
(4) a facility used for the temporary detention of a person detained or arrested by a private security guard or other private person.
SECTION 4. Section 31-20-2 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-13, as amended) is amended to read:
"31-20-2. PLACE OF IMPRISONMENT--COMMITMENTS.--
A. Persons sentenced to imprisonment for a term of one year or more shall be imprisoned in a corrections facility designated by the corrections department, unless a new trial is granted or a portion of the sentence is suspended so as to provide for imprisonment for not more than eighteen months; then the imprisonment may be in such place of incarceration, other than a corrections facility under the jurisdiction of the corrections department, as the sentencing judge, in [his] the judge's discretion, may prescribe; provided that a sentence of imprisonment for one year or more but not more than eighteen months shall be subject to the provisions of Subsections D and E of this section and shall not be imposed unless the requirements set forth in Subsection D of this section are satisfied.
B. All commitments, judgments and orders of the courts of this state for the imprisonment or release of persons in the penitentiary of New Mexico shall run to the corrections department, but nothing contained in this section shall invalidate or impair the validity of any commitment, judgment or order of any court in this state directed to the secretary of corrections, the warden of the penitentiary of New Mexico or to the penitentiary of New Mexico, and all such commitments, judgments and orders shall be treated and construed as running to the corrections department.
C. There is created within the corrections department an "intake and classification center". The intake and classification center shall have the following duties:
(1) process all inmates sentenced or committed for purposes of diagnosis to the corrections department;
(2) classify inmates for housing assignments;
(3) develop an individualized plan for participation by each inmate in programs, work assignments and special needs;
(4) monitor each inmate's progress during incarceration and reclassify or modify classification assignments as may be necessary, taking into consideration the overall needs of the inmate population, institutional and facility requirements and the individual inmate's needs;
(5) with the approval of the secretary of corrections, may transfer inmates of the penitentiary of New Mexico to an institution under the control of another state if that state has entered into a corrections control agreement with New Mexico; and
(6) with the approval of the secretary of corrections, may transfer inmates to any facility, including the forensic hospital under the jurisdiction of the department of health.
D. A sentence of one year or more but not more than eighteen months and providing for imprisonment in a place of incarceration other than a corrections facility under the jurisdiction of the corrections department pursuant to Subsection A of this section, which shall be known as the local sentencing option, shall not be imposed unless:
(1) the place of incarceration is located within the county in which the crime was committed; and
(2) the governing authority in charge of the place of incarceration has entered into a joint powers agreement with the corrections department setting forth:
(a) the amount of money the corrections department shall pay for offenders sentenced to a term of one year or more but not more than eighteen months and the number of offenders [which] that may be sentenced to such terms; and
(b) any other provisions deemed appropriate and agreed to by the local governing body and the corrections department.
E. If a judge imposes a sentence of one year or more but not more than eighteen months and provides for imprisonment in a place of incarceration other than a corrections facility under the jurisdiction of the corrections department:
(1) the local governing body or its agent shall have the ability to petition that judge when the capacity of the place of incarceration is filled or when any problem develops concerning that offender requesting the judge to issue an order committing the offender to the corrections department for completion of the remainder of [his] the offender's sentence. A hearing on a petition pursuant to this paragraph shall be held within three days of the filing of the petition. Notwithstanding any other provision of law, the judge shall retain jurisdiction over the offender for the purpose of implementing the local sentencing option; and
(2) the local governing body or its agent shall keep the district judges for the judicial district in which the place of incarceration is located informed as to the capacity for the sentencing of offenders in accordance with the local sentencing option. No judge shall sentence an offender in accordance with the local sentencing option if that sentence will result in exceeding the number of offenders set forth in the joint powers agreement.
F. The corrections department shall file an annual report with the legislature [which] that shall contain the number of joint powers agreements in operation pursuant to this section, copies of those agreements, the number of offenders currently incarcerated pursuant to those agreements and any other relevant information relating to the implementation of this section.
G. The corrections department may enter into contracts with public [or private] detention facilities for the purpose of housing inmates lawfully committed to the corrections department. Any facility with which the department contracts shall meet or exceed corrections department standards prior to the housing of any inmates within the facility and shall meet certification requirements for prisons within eighteen months of entering into such contracts. The contractor shall adhere to all appropriate corrections department policies and procedures and shall agree to have staff trained at the corrections department training academy."
SECTION 5. A new section of Chapter 33, Article 3 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DEFINITION--JAIL ADMINISTRATOR.--For the purposes of Chapter 33, Article 3 NMSA 1978, "jail administrator" means an individual employed by a county, municipality or a combination of these, who supervises the entire operation of a jail and reports directly to the administrative head of the local governmental entity or local governing body."
SECTION 6. Section 33-3-1 NMSA 1978 (being Laws 1865-1866, Chapter 19, Section 1, as amended) is amended to read:
"33-3-1. COMMON JAILS--OPERATION BY SHERIFF, JAIL ADMINISTRATOR OR PRIVATE INDEPENDENT CONTRACTOR.--
A. The common jails shall be under the control of the:
(1) respective sheriffs [independent contractors] or jail administrators [hired] employed by the board of county commissioners or other local public body or combination thereof [and the same]; or
(2) private independent contractors that have entered into an agreement for the operation or management of a detention facility before the effective date of the Private Detention Facility Moratorium Act.
B. The common jails shall be used as prisons in the respective counties.
[B. Contracts between local public bodies and private independent contractors for the operation or provision and operation of a jail are specifically authorized by this section; provided that prior to July 1, 1987, no more than two pilot projects involving private independent contractors are authorized in New Mexico pursuant to Section 33-3-26 NMSA 1978.]"
SECTION 7. Section 33-3-2 NMSA 1978 (being Laws 1972, Chapter 69, Section 1, as amended) is amended to read:
"33-3-2. JOINT AGREEMENTS FOR THE CONSTRUCTION, MANAGEMENT AND OPERATION OF CORRECTIONAL AND DETENTION FACILITIES AND JAILS.--
A. Notwithstanding the provisions of Subsection A of Section 33-3-1 NMSA 1978, the board of county commissioners of a county may enter into an agreement with other counties and municipalities to provide for the construction, maintenance or operation of one or more jails or correctional or detention facilities for confinement of persons charged with crimes or violations of municipal or county ordinances or committed to jail.
B. The agreement authorized in Subsection A of this section:
(1) may provide for the control of the indicated facilities by the sheriff of the county in which the facility is located [or], by a jail administrator [as defined in Section 4-44-19 NMSA 1978 or by an independent contractor] or by a private independent contractor if that private contractor has entered into the agreement prior to the effective date of the Private Detention Facility Moratorium Act; and [the agreement]
(2) shall state the manner in which the person in control shall be selected if [it] the person is other than the sheriff.
C. In a class A county utilizing a joint city and county jail, municipalities shall pay a fee to the board of county commissioners for each prisoner housed in the county jail charged with municipal offenses or arrested by municipal officers. The fee shall be a reasonable fee established by the board of county commissioners and approved by the local government division of the department of finance and administration.
D. [No] An agreement or [an] amendment to an agreement authorized by this section is not effective until it is approved by the local government division of the department of finance and administration."
SECTION 8. Section 33-3-18 NMSA 1978 (being Laws 1889, Chapter 8, Section 4, as amended) is amended to read:
"33-3-18. COUNTIES WITHOUT JAILS--ARRANGEMENTS WITH OTHER COUNTIES.--In case any county in this state lacks a jail or proper place of confinement for its prisoners, the board of county commissioners of that county shall make contractual arrangements with other counties or municipalities [or independent contractors] for the incarceration and care of its prisoners [and that]. The jail [so] designated by [any] the board of county commissioners of any county not having a jail or other proper place of confinement shall be the legal place of confinement of the prisoners of [said] the county."
SECTION 9. Section 33-6-4 NMSA 1978 (being Laws 1939, Chapter 75, Section 5) is amended to read:
"33-6-4. COUNTY COMMISSIONERS AUTHORIZED TO ACT.--The boards of county commissioners of the several counties are [hereby] authorized and empowered to enter into any [and all] contracts and to do [and perform] any [and all] things necessary and proper to carry into effect the provisions [hereof] of Chapter 33, Article 6 NMSA 1978, except that a board of county commissioners shall not enter into a contract with a private independent contractor for the operation or management of a juvenile detention home."
SECTION 10. TEMPORARY PROVISION--PRIVATE DETENTION FACILITIES TRANSITION TASK FORCE--CREATED--DUTIES--REPORTING REQUIREMENTS.--
A. The "private detention facilities transition task force" is created and shall exist until December 20, 2021.
B. The task force consists of seventeen members, which shall include:
(1) one member from the corrections department, appointed by the secretary of corrections;
(2) one member from the economic development department, appointed by the secretary of economic development;
(3) one member from the workforce solutions department, appointed by the secretary of workforce solutions;
(4) one member of the office of the governor, appointed by the governor;
(5) one member who represents a county government in a community that may be affected by the closure of a private detention facility, appointed by the governor;
(6) one representative from the legislative interim committee that studies courts, corrections and justice issues, appointed by the co-chairs of that committee;
(7) one senator from the legislative interim committee that studies courts, corrections and justice issues, appointed by the co-chairs of that committee;
(8) one representative from the labor organization representing the largest number of corrections officers in the state, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues;
(9) two members from a criminal justice reform organization, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues;
(10) two members who were formerly incarcerated or detained, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues;
(11) two members from a community-based organization, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues;
(12) two members from an immigrant advocacy organization, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues; and
(13) one member with a background in public health, appointed by the co-chairs of the legislative interim committee that studies courts, corrections and justice issues.
C. The task force shall be appointed no later than the second meeting in 2021 of the interim committee that studies courts, corrections and justice issues or by July 31, 2021, whichever is earlier.
D. The task force shall select a chair from among its members at the first meeting.
E. The task force shall develop proposals for legislation and create a plan to phase out private detention facilities that includes recommendations to:
(1) determine the economic impacts of phasing out private detention facilities, including assessing the potential impact on employment and the state budget and measures to address this impact;
(2) safely reduce the prison population overall; and
(3) analyze the state's capacity to take over private detention facilities.
F. No later than December 20, 2021, the task force shall submit a report of its findings, including specific recommendations and proposed legislation, to the governor, the New Mexico legislative council and the appropriate legislative interim committee that studies courts, corrections and justice issues.
SECTION 11. REPEAL.--Sections 33-1-17 and 33-3-26 NMSA 1978 (being Laws 1985, Chapter 149, Section 1 and Laws 1984, Chapter 22, Section 17, as amended) are repealed.
SECTION 12. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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