2005 Idaho Code - 20-241A — AGREEMENTS FOR CONFINEMENT OF INMATES

                                  TITLE  20
                        STATE PRISON AND COUNTY JAILS
                                  CHAPTER 2
                          STATE BOARD OF CORRECTIONS
    20-241A.  AGREEMENTS FOR CONFINEMENT OF INMATES. The state board of
correction shall have the power and it shall be its duty:
    (1)  To determine the availability of state facilities suitable for the
detention and confinement of prisoners held under authority of state law. If
the state board of correction determines that suitable state facilities are
not available, it may enter into an agreement with the proper authorities of
the United States, another state, a political subdivision of this state or
another state, or a private prison contractor, to provide for the safekeeping,
care, subsistence, proper government, discipline, and to provide programs for
the reformation, rehabilitation and treatment of prisoners. Facilities made
available to the state board of correction by agreement may be in this state,
or in any other state, territory or possession of the United States.  The
state board of correction shall not enter into an agreement with an authority
unable to provide the degree or kind of safekeeping, care and subsistence
required by state or federal laws, the constitution of the state of Idaho, the
United States constitution, and the rules adopted by the state board of
correction. All contracts or agreements entered into by the state board of
correction and a private prison contractor shall by [be] subject to the
provisions of this section and section 20-209, Idaho Code.
    (a)  An authority or private prison contractor, receiving physical custody
    for the purpose of incarceration of a person sentenced by a court under
    the terms of an agreement made under this section, shall be considered as
    acting solely as an agent of this state. This state retains jurisdiction
    over a person incarcerated in an institution of another state, the United
    States, a political subdivision of this state or another state, or of a
    private institution;
    (b)  The attorney general of this state shall enforce an agreement or
    contract made under this section in a civil suit.
    (2)  The state board of correction shall have the authority to enter into
contracts with private prison contractors for the site selection, design,
design/building, acquisition, construction, construction management,
maintenance, leasing, leasing/purchasing, management or operation of private
prison facilities or any combination of these services, subject to the
following requirements and limitations:
    (a)  Any request for proposals, any original contract, any contract
    renewal, any price or cost adjustment or any other amendment to any
    contract for the incarceration of individuals in a private institution,
    shall be reviewed by the board of correction;
    (b)  No contract authorized by the provisions of this section shall be
    awarded until the private prison contractor demonstrates to the
    satisfaction of the state board of correction that the contractor
    possesses the necessary qualifications and experience to provide the
    services specified in the contract; that the contractor can provide the
    necessary qualified personnel to implement the terms of the contract; that
    the financial condition of the contractor is such that the terms of the
    contract can be fulfilled; that the contractor has the ability to comply
    with applicable court orders and corrections standards; and that the
    proposed private prison facilities or the correctional services proposed
    by the contractor meet constitutional minimums;
    (c)  No contract authorized by the provisions of this section shall be
    awarded until the private prison contractor demonstrates to the
    satisfaction of the state board of correction that the contractor can
    obtain insurance or provide self-insurance to indemnify the state against
    possible claims arising from the operation of prison facilities by the
    contractor, and to compensate the state for any losses incurred due to the
    operation of prison facilities;
    (d)  Contracts awarded to private prison contractors pursuant to the
    provisions of this section shall be entered into for a period specified in
    each contract, subject to availability of funds annually appropriated by
    the Idaho legislature for that purpose. No contract awarded pursuant to
    this section shall provide for the encumbrance of funds beyond the amount
    available for a fiscal year;
    (e)  A contract may provide for annual contract price or cost adjustments,
    except that any adjustments may be made only once each year effective on
    the anniversary of the effective date of the contract.
    (3)  Any contract between the state board of correction and a private
prison contractor, whereby the contractor provides for the housing, care, and
control of inmates in a nondepartmental facility operated by the contractor,
shall contain, in addition to other provisions, terms and conditions;
    (a)  A requirement that the contractor is to provide said services in a
    facility which meets standards as required by the Idaho department of
    correction;
    (b)  If a private prison institution is to be located in the state of
    Idaho on private land, it shall be required that the contractor obtain
    written authorization from the governing board of any municipality in
    which the facility is to be located, or if the facility is not to be
    located within the municipality, written authorization from the board of
    county commissioners of the county in which the facility is to be located;
    (c)  A requirement that the private prison contractor shall provide
    training to its personnel to a level acceptable to the Idaho department of
    correction. The Idaho department of correction may provide training to the
    personnel of a private prison contractor and may charge a reasonable fee
    for the training, not to exceed the cost of training. The provisions of
    this section shall not be construed to confer peace officer status upon
    any employee of the private prison contractor or to authorize the use of
    firearms except to prevent escape from the facility or from custody while
    being transported to or from the facility or to prevent an act which would
    cause death or serious bodily injury to any person. The provisions of this
    section shall not be construed to confer Idaho state employee status upon
    any employee of the private prison contractor;
    (4)  Contracts awarded under the provisions of this section shall, at a
minimum, comply with the following:
    (a)  Provide for internal and perimeter security to protect the public,
    employees and inmates;
    (b)  Provide that the private prison contractor shall not benefit
    financially from the labor of inmates nor shall any inmate ever be placed
    in a position of authority over another inmate. Any profits realized from
    the operation of a prison enterprise program shall revert to the
    department of correction or appropriate governmental authority. Private
    prison contractors may work with the Idaho department of correction in
    setting up work and training programs. Private prison contractors shall be
    authorized to purchase services and commodities from the Idaho department
    of correction which are necessary for implementing work or training
    opportunities as outlined in this section;
    (c)  Impose discipline on inmates only in accordance with applicable Idaho
    department of correction rules and procedures;
    (d)  Provide proper food, clothing, housing and medical care as provided
    for in the contract.
    (5)  A private prison contractor, in carrying out its duties and
responsibilities under contract with the state board of correction, shall not
be bound by the enactments of the legislature which govern the appointment,
qualifications, duties, salaries or benefits of wardens, managers or other
correctional employees. No employee of the private prison contractor shall be
considered an employee of the state of Idaho. A private prison contractor
shall not employ any person who does not satisfy the board of correction's
personnel policies.
    (6)  The director of the Idaho department of correction or his designee
shall monitor the performance of the private prison contractor. In all such
contracts the state shall retain clear supervisory and monitoring powers over
the operation and management of the private institutions to insure that the
inmates are properly cared for and that the employees of the facility and the
public are adequately protected. Included in the powers and responsibilities
of the director of the Idaho department of correction or his designee when
acting as the chief contract monitor of the private prison contract are:
    (a)  Approval of all inmate releases on furlough or work release;
    (b)  Approval of the type of work offenders may perform pursuant to this
    section and review and approval of any incentive pay plan presented by the
    private prison contractor for offender pay;
    (c)  Approval of the training program for the private prison contractor's
    employees;
    (d)  A determination if the minimum requirements of the contract are being
    satisfactorily performed;
    (e)  Promulgation of rules interpreting or making specific application of
    the provisions of this section;
    (f)  A determination if appropriate policies and procedures of the Idaho
    department of correction are being followed by the private prison
    contractor and its personnel.
    (7)  No contract for correctional services may authorize, allow, or imply
a delegation of authority or responsibility to a private prison contractor
which would allow the contractor to:
    (a)  Develop or implement procedures for calculating inmate release dates;
    (b)  Approve the type of work inmates may perform and the wages which may
    be given to inmates engaging in the work;
    (c)  Place an inmate under less restrictive custody or more restrictive
    custody or take any disciplinary actions contrary to rules and procedures
    approved by the Idaho department of correction;
    (d)  Develop or implement procedures regarding the care, custody and
    treatment of inmates which are contrary to the Idaho department of
    correction's policies and procedures, state or federal law.
    (8)  Any offense, which if committed in a state institution or facility
would be a crime, including escape, shall also be a crime if committed by or
with regard to offenders assigned to an institution or facility operated
pursuant to a contract between the state and a private prison contractor.
    (9)  Any reference in the Idaho Code to imprisonment in a state
penitentiary, or state prison, or incarceration under the control and custody
of the Idaho board of correction shall be interpreted to include incarceration
in a private prison facility.