State of Washington
66th Legislature
2020 Regular Session
BySenate Human Services, Reentry & Rehabilitation (originally sponsored by Senators Saldaña, Wilson, C., Salomon, McCoy, Wellman, Stanford, Hasegawa, Kuderer, Pedersen, Nguyen, Frockt, and Das)
AN ACT Relating to the private detainment of individuals; amending RCW 72.68.040, 72.68.010, and 72.68.001; reenacting and amending RCW 72.09.050; adding a new section to chapter 72.68 RCW; creating new sections; repealing RCW 72.68.012; and declaring an emergency.
NEW SECTION.  Sec. 1. LEGISLATIVE FINDINGS.(1) The legislature finds that all people confined in prisons in Washington deserve basic health care, nutrition, and safety. As held in United States v. California, 921 F.3d 865, 886 (9th Cir. 2019), states possess "the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders."
(2) The legislature finds that profit motives lead private prisons to cut operational costs, including the provision of food, health care, and rehabilitative services, because their primary fiduciary duty is to maximize shareholder profits. The legislature finds that this is in stark contrast to the interests of the state to ensure the health, safety, and welfare of Washingtonians.
(3) The legislature finds that people confined in for-profit prisons have experienced abuses and have been confined in dangerous and unsanitary conditions. Safety risks and abuses in private prisons at the local, state, and federal level have been consistently and repeatedly documented. The United States department of justice office of the inspector general found in 2016 that privately operated prisons "incurred more safety and security incidents per capita than comparable BOP (federal bureau of prisons) institutions." The office of inspector general additionally found that privately operated prisons had "higher rates of inmate-on-inmate and inmate-on-staff assaults, as well as higher rates of staff uses of force."
(4) The legislature finds that private prison operators have cut costs by reducing essential security and health care staffing. The sentencing project, a national research and advocacy organization, found in 2012 that private prison staff earn an average of five thousand dollars less than staff at publicly run facilities and receive almost sixty hours less training. The office of inspector general also found that people confined in private facilities often failed to receive necessary medical care and that one private prison went without a full-time physician for eight months.
(5) The legislature finds that private prisons are less accountable for what happens inside those facilities than state-run facilities, as they are not subject to the freedom of information act under 5 U.S.C. Sec. 552 or the Washington public records act under chapter 42.56 RCW.
(6) The legislature finds that at least twenty-two other states have stopped confining people in private for-profit facilities.
(7) Therefore, it is the intent of the legislature to prohibit the use of private prisons in Washington state.
NEW SECTION.  Sec. 2. A new section is added to chapter 72.68 RCW to read as follows:
(1) Except as provided in subsection (2) of this section and RCW 72.68.010(2), the secretary is prohibited from utilizing a contract with a private correctional entity for the transfer or placement of offenders.
(2) This section does not apply to:
(a) State work release centers, juvenile residential facilities, nonprofit community-based alternative juvenile detention facilities, or nonprofit community-based alternative adult detention facilities that provide separate care or special treatment, operated in whole or in part by for-profit contractors;
(b) Contracts for ancillary services including, but not limited to, medical services, educational services, repair and maintenance contracts, behavioral health services, or other services not directly related to the ownership, management, or operation of security services in a correctional facility; or
(c) Tribal entities.
Sec. 3. RCW 72.68.040 and 2012 c 117 s 500 are each amended to read as follows:
(1) The secretary may contract with the authorities of the federal government, or the authorities of any state of the United States, ((private companies in other states,)) or any county or city in this state providing for the detention in an institution or jail operated by such entity, for prisoners convicted of a felony in the courts of this state and sentenced to a term of imprisonment therefor in a state correctional institution for convicted felons under the jurisdiction of the department. ((After))Except as provided in subsection (2) of this section, after the making of a contract under this section, prisoners sentenced to a term of imprisonment in a state correctional institution for convicted felons may be conveyed by the superintendent or his or her assistants to the institution or jail named in the contract. The prisoners shall be delivered to the authorities of the institution or jail, there to be confined until their sentences have expired or they are otherwise discharged by law, paroled, or until they are returned to a state correctional institution for convicted felons for further confinement.
(2) A prisoner may not be conveyed to a private correctional entity except under the circumstances identified in RCW 72.68.010(2) or section 2(2) of this act.
Sec. 4. RCW 72.68.010 and 2000 c 62 s 2 are each amended to read as follows:
(1) Whenever in its judgment the best interests of the state or the welfare of any prisoner confined in any penal institution will be better served by his or her transfer to another institution or to a foreign country of which the prisoner is a citizen or national, the secretary may effect such transfer consistent with applicable federal laws and treaties. The secretary has the authority to transfer offenders between in-state correctional facilities or to out-of-state ((to private or)) governmental institutions if the secretary determines that transfer is in the best interest of the state or the offender. The determination of what is in the best interest of the state or offender may include but is not limited to considerations of overcrowding, emergency conditions, or hardship to the offender. In determining whether the transfer will impose a hardship on the offender, the secretary shall consider: (a) The location of the offender's family and whether the offender has maintained contact with members of his or her family; (b) whether, if the offender has maintained contact, the contact will be significantly disrupted by the transfer due to the family's inability to maintain the contact as a result of the transfer; and (c) whether the offender is enrolled in a vocational or educational program that cannot reasonably be resumed if the offender is returned to the state.
(2)(a) The secretary has the authority to transfer offenders to an out-of-state private correctional entity only if:
(i) The governor finds that an emergency exists as a result of a catastrophic incident;
(ii) As a result of the catastrophic incident, the population of a state correctional facility exceeds its reasonable, maximum capacity, resulting in safety and security concerns;
(iii) The governor has considered all other legal options to address capacity, including those pursuant to RCW 9.94A.870;
(iv) The secretary determines that transfer is in the best interest of the state or the offender; and
(v) The contract with the out-of-state private correctional entity includes requirements for access to public records to the same extent as if the facility were operated by the department, inmate access to the office of the corrections ombuds, and inspections and visits without notice.
(b) Should any of these requirements in this subsection not be met, the contract with the private correctional entity shall be terminated.
(3) If directed by the governor, the secretary shall, in carrying out this section and RCW 43.06.350, adopt rules under chapter 34.05 RCW to effect the transfer of prisoners requesting transfer to foreign countries.
Sec. 5. RCW 72.09.050 and 1999 c 309 s 1902 and 1999 c 309 s 924 are each reenacted and amended to read as follows:
The secretary shall manage the department of corrections and shall be responsible for the administration of adult correctional programs, including but not limited to the operation of all state correctional institutions or facilities used for the confinement of convicted felons. In addition, the secretary shall have broad powers to enter into agreements with any federal agency, or any other state, or any Washington state agency or local government providing for the operation of any correctional facility or program for persons convicted of felonies or misdemeanors or for juvenile offenders. Such agreements for counties with local law and justice councils shall be required in the local law and justice plan pursuant to RCW 72.09.300. The agreements may provide for joint operation or operation by the department of corrections, alone, for by any of the other governmental entities, alone. ((Beginning February 1, 1999, the secretary may expend funds appropriated for the 1997-1999 biennium to enter into agreements with any local government or private organization in any other state, providing for the operation of any correctional facility or program for persons convicted of felonies. Between July 1, 1999, and June 30, 2001, the secretary may expend funds appropriated for the 1999-01 biennium to enter into agreements with any local government or private organization in any other state, providing for the operation of any correctional facility or program for persons convicted of felonies.)) The secretary may employ persons to aid in performing the functions and duties of the department. The secretary may delegate any of his or her functions or duties to department employees, including the authority to certify and maintain custody of records and documents on file with the department. The secretary is authorized to promulgate standards for the department of corrections within appropriation levels authorized by the legislature.
Pursuant to the authority granted in chapter 34.05 RCW, the secretary shall adopt rules providing for inmate restitution when restitution is determined appropriate as a result of a disciplinary action.
Sec. 6. RCW 72.68.001 and 1981 c 136 s 114 are each amended to read as follows:
((As used in this chapter:))The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Department" means the department of corrections((; and)).
(2) "Private correctional entity" means a for-profit contractor or for-profit vendor who provides services relating to the ownership, management, or administration of security services of a correctional facility for the incarceration of persons.
(3) "Secretary" means the secretary of corrections.
NEW SECTION.  Sec. 7. REPEALER.RCW 72.68.012 (Transfer to private institutionsIntentAuthority) and 2000 c 62 s 1 are each repealed.
NEW SECTION.  Sec. 8. LIBERAL CONSTRUCTION.This act shall be construed liberally for the accomplishment of the purposes thereof.
NEW SECTION.  Sec. 9. EMERGENCY CLAUSE.This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.
NEW SECTION.  Sec. 10. SEVERABILITY.If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
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