45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO PRIVATELY OPERATED CORRECTIONAL FACILITIES;

IMPOSING MINIMUM STANDARDS; PROVIDING THE SECRETARY OF

CORRECTIONS WITH AUTHORITY TO ADOPT RULES REGARDING

INCARCERATION OF OUT-OF-STATE AND OUT-OF-COUNTY INMATES IN

PRIVATELY OPERATED CORRECTIONAL FACILITIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. INCARCERATION OF OUT-OF-STATE AND OUT-OF-COUNTY INMATES IN PRIVATELY OPERATED CORRECTIONAL FACILITIES--MINIMUM STANDARDS--SECRETARY'S AUTHORITY TO ADOPT RULES--IMMUNITY.--

A. As used in this section:

(1) "out-of-county inmate" means a person incarcerated in a privately operated correctional facility within this state who is being incarcerated in a county facility or municipal facility on behalf of a New Mexico county that is not the county where the facility is located or on behalf of a New Mexico municipality that is not within the county where the privately operated correctional facility is located. "Out-of-county inmate" does not include a person who is being incarcerated on behalf of an Indian tribe or pueblo whose lands are located wholly or partially within the county where the facility is located, or on behalf of the United States;

(2) "out-of-state inmate" means a person incarcerated in a privately operated correctional facility within this state who is being incarcerated on behalf of a state other than New Mexico, a governmental entity whose jurisdiction is outside the state of New Mexico or any private entity. "Out-of-state inmate" does not include a person who is being incarcerated on behalf of an Indian tribe or pueblo whose lands are located wholly or partially within New Mexico, or on behalf of the United States;

(3) "privately operated correctional facility" means a correctional facility that has all or substantially all of its security operations performed by persons employed by, or engaged by, a private entity to perform security functions; and

(4) "secretary" means the secretary of corrections or his designee.

B. A privately operated correctional facility shall meet the following minimum standards before housing ten or more out-of-state inmates or out-of-county inmates:

(1) all correctional officers and other persons, employed or engaged by a privately operated correctional facility, whose primary function is to provide security shall, before being assigned to provide the security functions, successfully complete a screening, background check and training course approved by the secretary, unless the secretary grants the person a waiver. The secretary shall offer to provide services to the privately operated correctional facility or private entity, including qualifying screening, background checks and a training program at the corrections academy at a reasonable cost;

(2) a privately operated correctional facility shall provide immediate oral notice, followed by a written report, to the secretaries of public safety and corrections, the local county sheriff and the chief of police of the municipality in which the facility is located, or the chief of police of the nearest municipality, or their designees, whenever any of the following events occur at the privately operated correctional facility:

(a) discharge of a firearm other than for training purposes;

(b) discharge of a chemical agent, gas or munitions to control the behavior of two or more inmates;

(c) a hostage situation;

(d) the death of an inmate, staff member, visitor or other person;

(e) a disturbance involving five or more inmates;

(f) an escape or attempted escape;

(g) the commission of a felony offense;

(h) an erroneous release of an out-of-state inmate or an inmate who was being held on behalf of the corrections department; or

(i) a report or other indication of the use of excessive force upon an inmate, unless the report is clearly false;

(3) a privately operated correctional facility shall obtain and maintain current accreditation by the American correctional association regarding standards for prisons or standards for jails as deemed appropriate by the secretary, unless a waiver is obtained from the secretary. As to any new privately operated correctional facility, the secretary may allow the facility a period of two years from the date the facility becomes operational to obtain accreditation or may require the facility to apply for and receive provisional accreditation;

(4) a privately operated correctional facility shall prepare and submit an emergency plan deemed satisfactory by the secretary; and

(5) the owner or operator of a privately operated correctional facility shall enter into a written contract with the entity that proposes to house ten or more out-of-state inmates or out-of-county inmates in the facility, and the contract shall contain provisions that require compliance with the minimum standards set forth in this subsection. The contract shall be subject to advance review and approval by the secretary.

C. The secretary may adopt, implement and enforce standards and rules regarding privately operated correctional facilities that house or propose to house ten or more out-of-state inmates or out-of-county inmates. The secretary shall review all contracts and proposed contracts between the owner or operator of a privately operated correctional facility and the entity that proposes to house ten or more out-of-state inmates or out-of-county inmates in the facility. The inmates shall not be housed in the privately operated correctional facility until the contract is approved by the secretary.

D. The secretary shall inspect and monitor a privately operated correctional facility that houses or proposes to house ten or more out-of-state inmates or out-of-county inmates to ensure compliance with the minimum standards set forth in this section and to ensure compliance with standards and rules adopted by the secretary pursuant to this section. The secretary shall be provided with the classification records and other relevant records pertaining to the out-of-state inmates or out-of-county inmates who are proposed to be housed at the privately operated correctional facility. The secretary shall have subpoena authority as to all present and former employees and other personnel of the privately operated correctional facility, as well as to all records pertaining to the facility, for the purposes of inspecting and monitoring the facility. Upon completion of an inspection, the secretary shall submit a report with findings and recommendations to the privately operated correctional facility, the board of county commissioners for the county where the facility is located, the county sheriff of the county where the facility is located and the legislative corrections oversight committee. The secretary shall allow the facility a reasonable period of time to address any deficiencies and recommendations set forth in the report. The secretary may conduct additional inspections to determine compliance with minimum standards, rules and any recommendations. If a privately operated correctional facility that houses or proposes to house out-of-state inmates fails to comply with the standards and rules authorized pursuant to this section, the secretary may prohibit the privately operated correctional facility from housing out-of-state inmates.

E. The secretary and his designees are granted immunity from lawsuits with regard to claims that are primarily related to:

(1) the secretary's authority to adopt, implement and enforce standards and rules, as authorized in this section; and

(2) the secretary's authority to inspect and monitor privately operated correctional facilities, as authorized in this section.

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.