SENATE BILL 526

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Sander Rue

AN ACT

RELATING TO DETENTION FACILITIES; REQUIRING THE ATTORNEY GENERAL TO HIRE A DETENTION FACILITY AUDITOR TO AUDIT DETENTION FACILITIES FOR COMPLIANCE WITH THE FEDERAL PRISON RAPE ELIMINATION ACT OF 2003; PRESCRIBING QUALIFICATIONS AND DUTIES OF THE AUDITOR; PRESCRIBING DUTIES OF DETENTION FACILITIES AND THEIR OPERATORS; MAKING AN APPROPRIATION.

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

     SECTION 1. SHORT TITLE.--This act may be cited as the "Detention Facility Audit Act".

     SECTION 2. DEFINITIONS.--As used in the Detention Facility Audit Act: 

          A. "auditor" means a detention facility auditor;

          B. "detention facility" means an adult or juvenile facility in New Mexico that is operated by or on behalf of the federal government, the state government or a local government, and that is used to hold inmates, residents or detainees;

          C. "entity" means a unit of the federal government, state government or local government or a corporation that is responsible for the operation of a detention facility; and

          D. "standards" means the standards promulgated pursuant to the federal Prison Rape Elimination Act of 2003.

     SECTION 3. AUDITOR--QUALIFICATIONS--DUTIES.--

          A. The attorney general shall hire a full-time auditor to conduct audits of detention facilities in New Mexico in accordance with the federal Prison Rape Elimination Act of 2003 and the provisions of the Detention Facility Audit Act.

          B. To qualify for the position of auditor, a person shall:

                (1) be certified by the United States department of justice; and

                (2) not have received financial compensation from an entity within the three years preceding the person's date of hire as an auditor, except for compensation received for conducting previous audits pursuant to the federal Prison Rape Elimination Act of 2003.

          C. The detention facility auditor shall:

                (1) have the power to subpoena, which may be enforced through any district court of the state;

                (2) conduct audits of detention facilities in New Mexico in accordance with the federal Prison Rape Elimination Act of 2003, using the audit instrument developed and issued by the United States department of justice pursuant to that act;

                (3) conduct an audit of each detention facility in New Mexico at least once every three years, beginning on August 20, 2013; and

                (4) conduct audits of at least one-third of the total number of each of the following types of detention facilities in New Mexico every year:

                     (a) prisons or similar detention facilities that hold persons serving sentences equal to or greater than one year in duration; 

                     (b) jails or similar detention facilities that hold persons serving sentences less than one year in duration;

                     (c) lockups or similar detention facilities that are operated by a law enforcement agency or a court and that temporarily hold persons who were recently arrested or detained or who are being transferred between detention facilities or to or from a court;

                     (d) community correctional facilities, including community treatment centers, halfway houses, transitional living facilities, mental health facilities, alcohol or drug rehabilitation facilities and similar facilities in which persons reside as part of a term of imprisonment or as a condition of release from a term of imprisonment; and

                     (e) juvenile detention facilities.

          D. In conducting an audit pursuant to the Detention Facility Audit Act, the auditor shall:

                (1) observe all areas of a detention facility;

                (2) review copies of an entity's and a detention facility's documents, records and other information relevant to the audit;

                (3) review all of an entity's and a detention facility's relevant policies, procedures, reports, internal and external audits and detention facility accreditations;

                (4) interview a representative sample of inmates, residents or detainees and staff members, supervisors and administrators of a detention facility;

                (5) conduct private and confidential interviews with inmates, residents or detainees of a detention facility;

                (6) review a detention facility's videotapes or other electronic data relevant to the audit;

                (7) gather relevant information from organizations, including victims' advocate organizations, in the community in which a detention facility is located;

                (8) retain and preserve all documentation, including videotapes and interview notes, on which the auditor relied in making audit determinations;

                (9) provide documentation on which the auditor relied in making audit determinations to the United States department of justice, upon its request; 

                (10) on completion of an audit, produce a report that:

                     (a) states whether the entity's and detention facility's policies, procedures and practices comply with the standards;

                     (b) includes, with respect to each standard, the auditor's rating of a detention facility using the following rating scale: 1) "exceeds standard", which means the detention facility substantially exceeds the requirements of the standard; 2) "meets standard", which means the detention facility substantially complies in all material ways with the standard; or 3) "does not meet standard", which means the detention facility requires corrective action with respect to a standard;

                     (c) includes, with respect to a detention facility that fails to comply with any material aspect of an audit, an overall facility rating of "non-compliant";

                     (d) includes a summary of the audit that states the number of standards for which the auditor assigned a detention facility rating of "exceeds standard", "meets standard" and "does not meet standard";

                     (e) includes a description of the auditor's methodology and sampling sizes, and the bases for the auditor's assignment of ratings for each standard;

                     (f) includes recommendations for corrective action to be taken with respect to any standard for which a detention facility was rated "does not meet standard";

                     (g) includes the auditor's certification that no conflict of interest exists with respect to the auditor's ability to conduct the audit of a detention facility; and

                     (h) does not include personally identifiable information on inmates, residents, detainees or staff members of a detention facility, except that an unredacted version of the audit report, containing personally identifiable information on inmates, residents, detainees and staff members, shall be provided to the relevant entity or to the United States department of justice upon request;

                (11) publish a copy of final audit reports on the attorney general's web site and make the final audit reports available to the public in any other appropriate format;

                (12) in response to a rating of "does not meet standard", regarding one or more standards, develop a corrective action plan, in cooperation with an entity, to bring a detention facility into compliance with respect to all standards within one hundred eighty days;

                (13) verify that corrective action plans are implemented by reviewing an entity's and a detention facility's updated policies and procedures, re-inspecting detention facilities and taking other appropriate actions; and

                (14) issue a final determination, following the one-hundred-eighty-day period of a corrective action plan, which states whether a detention facility meets the standards that required corrective action.

          E. An auditor shall not be employed by, contract with or otherwise receive financial compensation from an entity for three years following the auditor's issuance of a final determination regarding an entity's detention facility, with the exception of contracting for subsequent audits pursuant to the federal Prison Rape Elimination Act of 2003.

     SECTION 4. ENTITY--DUTIES--POWERS.--

          A. With respect to audits conducted in accordance with the federal Prison Rape Elimination Act of 2003 and the Detention Facility Audit Act, an entity shall provide:

                (1) to the auditor within fifteen days, copies of correspondence or notices received from the United States department of justice that relate to or require action pursuant to the federal Prison Rape Elimination Act of 2003;

                (2) the auditor with full access to and an opportunity to observe all areas of a detention facility;

                (3) the auditor with copies of documents, records and other information, including videotapes and other electronic data, relevant to an audit, upon request; and

                (4) the auditor with access to inmates, residents and detainees so the auditor can conduct private and confidential interviews with them.

          B. An entity may request subsequent audits, conducted at the entity's expense after the entity takes corrective action as required by an audit, to show compliance with the standards that required corrective action.

          C. With respect to an audit, an entity may:

                (1) within ninety days of an auditor's final determinations, file an appeal with the United States department of justice regarding any specific audit determination that the entity believes to be incorrect; and

                (2) commission a re-audit of the entity's detention facility, if the United States department of justice believes the entity stated good cause in its appeal. The re-audit shall be conducted by an auditor mutually agreed upon by the United States department of justice and the entity, at the entity's expense, and the results of the re-audit shall be considered final.

     SECTION 5. ENTITY NONCOMPLIANCE--PENALTIES.--An entity or detention facility that knowingly violates its obligations pursuant to the Detention Facility Audit Act shall be subject to a civil penalty of not more than one thousand dollars ($1,000) for each violation of a provision of that act.

     SECTION 6. APPROPRIATION.--Three hundred fifty thousand dollars ($350,000) is appropriated from the general fund to the office of the attorney general for expenditure in fiscal year 2014 for the salary, benefits, travel expenses and other costs related to two detention facility auditors. Any unexpended or unencumbered balance remaining at the end of fiscal year 2014 shall revert to the general fund.  

     SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.

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