2010 Wyoming Statutes
Title 7 - Criminal Procedure
Chapter 22 - Private Correctional Facilities

CHAPTER 22 - PRIVATE CORRECTIONAL FACILITIES

 

ARTICLE 1 - IN GENERAL

 

7-22-101. Definitions.

 

 

(a) As used in this article:

 

(i) "American correctional association standards" means those standards at the time of implementation of this act, or if amended, the amended American correctional association standards, which are approved by the state;

 

(ii) "Contracting governmental entity" means the state or a local government which has entered into a contract with a contractor pursuant to this article;

 

(iii) "Contractor" or "private contractor" means a person who has entered into a contract with the state or a local government pursuant to W.S. 7-22-102;

 

(iv) "Deadly force" means force that is likely to cause death or serious bodily injury;

 

(v) "Facility" means a jail, prison or other incarceration facility constructed or operated pursuant to a contract under W.S. 7-22-102;

 

(vi) "Five (5) state elected officials" means the governor, secretary of state, state auditor, state treasurer and superintendent of public instruction;

 

(vii) "Local government" means any city, town, joint powers board or county in Wyoming;

 

(viii) "Nondeadly force" means force that normally would cause neither death nor serious bodily injury;

 

(ix) "Private-company detention officer" means a private contractor's employee serving as a detention officer at a facility being operated pursuant to a contract under W.S. 7-22-102;

 

(x) "State" means the state of Wyoming acting through the office of the governor.

 

7-22-102. Authority to contract; general conditions.

 

 

(a) The state or a local government may contract with private entities for the construction, lease (as lessor or lessee), acquisition, improvement, operation, maintenance, purchase or management of facilities and services as provided in this article, but only after receiving the consent of the five (5) state elected officials as to site, number of beds and classifications of inmates or prisoners to be housed in the facility.

 

(b) No contract shall be entered into or renewed unless the contracting governmental entity, with the concurrence of the five (5) state elected officials, determines the contract offers substantial cost savings to the contracting governmental entity and at least the same quality of services provided by the state or by similar local governments.

 

(c) After receiving the majority consent of the five (5) state elected officials as to the site, number of beds and classifications of inmates or prisoners to be housed in the facility, the state or the local government may contract with private entities for the construction, lease (as lessor or lessee), acquisition, improvement, operation, maintenance, purchase or management of facilities, either:

 

(i) For the incarceration of its own inmates or prisoners;

 

(ii) For the incarceration of prisoners or inmates of the state or any other local government;

 

(iii) For the incarceration of any prisoners or inmates:

 

(A) Under the jurisdiction of the United States government or any of its offices, departments or agencies;

 

(B) Otherwise under the control of the United States government or any of its offices, departments or agencies; or

 

(C) Lawfully confined by any jurisdiction within the United States.

 

(d) The state or the local government may reject or return prisoners from outside the state. Prisoners or inmates of out-of-state, nonfederal jurisdictions shall not be incarcerated in any facility operated by a local government entity under this article without the consent of the majority of the five (5) elected officials of this state. At no time shall the number of prisoners from out-of-state, nonfederal jurisdictions incarcerated in a facility operated by a local government entity under this article exceed thirty percent (30%) of the capacity of that facility. Any out-of-state, nonfederal prisoner shall be returned to the jurisdiction of origin to be released from custody by them, outside the state of Wyoming at the appropriate time.

 

(e) Notwithstanding any other provision of law or any rules or regulations adopted pursuant to statutory authority, a negotiated selection process, including requests for proposals from a list of applicants prequalified by the state or the local government, shall be applicable to any contract between the state or a local government and any private entity entered into under the authority of this article. Standards for prequalification of applicants under this subsection shall be promulgated as rules by the state or local government entity under the Wyoming Administrative Procedure Act before the commencement of the selection process.

 

(f) Rules and regulations promulgated under this article shall ensure that no contract entered into under this section shall result in the significant displacement of employed workers within a sixty (60) mile radius of the community.

 

7-22-103. Incarceration of inmates in privately operated facility.

 

At the direction of the state, in the case of a person sentenced to the custody of the department of corrections to serve a term of imprisonment in a state penal institution, or at the direction of the local government in the case of a person sentenced to imprisonment in a city or county jail, the person sentenced to imprisonment may be incarcerated in a facility constructed or operated by a private entity pursuant to a contract under this article.

 

7-22-104. Contract term and renewal.

 

The initial contract for the operation of a facility or for incarceration of prisoners or inmates therein shall be for a period of not more than three (3) years with an option to renew biannually thereafter. Contracts for purchase or lease (as lessor or lessee) of a facility shall not exceed a term of thirty (30) years. Any contract for the construction or operation of a facility shall be subject to annual appropriation by the contracting governmental entity.

 

7-22-105. Standards of operation.

 

 

(a) All facilities governed by this article shall be designed, constructed and at all times maintained and operated in accordance with the American correctional association standards in force at the time of contracting. The facility shall meet the percentage of standards required for accreditation by the American correctional association, except where the contract requires compliance with a higher percentage of nonmandatory standards. The contract may allow the contractor an extension of time in which to meet a lower percentage of nonmandatory standards only when the contract is for the renovation of an existing facility, in which case the contractor shall have not longer than three (3) months to meet those standards that are applicable to the physical plant.

 

(b) Facilities governed by this article shall comply with all federal and state constitutional standards, state and local laws, and all court orders.

 

7-22-106. Private-company detention officers; use of force.

 

 

(a) No person shall be employed as a private-company detention officer unless the person has been trained in the use of force and the use of firearms in accordance with American correctional association standards, 3-4070 through 3-4091, and, at the contractor's expense, has satisfactorily completed a basic training program approved by the state. If the training is provided under contract with the state, the costs of a basic training program shall not be greater than the costs of peace officer training at the Wyoming law enforcement academy.

 

(b) A private-company detention officer may use force only while on the grounds of a facility or while transporting inmates. Nondeadly force and deadly force shall be used by a private-company detention officer only as provided in this section.

 

(c) A private-company detention officer is authorized to use only such nondeadly force as the circumstances require in the following situations:

 

(i) To prevent the commission of a felony or misdemeanor, including escape;

 

(ii) To defend himself or others against physical assault;

 

(iii) To prevent serious damage to property;

 

(iv) To enforce institutional regulations and orders; and

 

(v) To prevent or quell a riot.

 

(d) A private-company detention officer who is trained pursuant to the provisions of subsection (a) of this section, shall have the right to carry and use firearms and shall exercise such authority and use deadly force only as a last resort when reasonably necessary to prevent the commission of a violent felony as defined in W.S. 6-1-104(a)(xii), to prevent the escape of a convicted felon from custody, or to defend the officer or any other person from imminent danger of death or serious bodily injury.

 

(e) Within three (3) days following an incident involving the use of force against an inmate or another, the employee shall file a written report describing the incident with the administrative staff of the facility and with the contract monitor appointed pursuant to W.S. 7-22-108.

 

(f) A private contractor shall have the same standing, authority, rights and responsibilities as the contracting governmental entity in any agreement, formal or informal, with local law enforcement agencies concerning the latter's obligations in the event of a riot, escape or other emergency situation.

 

7-22-107. Employee training requirements.

 

All employees of a facility operated by a private contractor pursuant to this article shall receive, at a minimum, the same quality and quantity of training as that required for employees of state operated facilities. If any or all of the applicable American correctional association standards relating to training are more stringent than are governmental standards, training shall be provided in accordance with the more stringent standards. All training expenses shall be the responsibility of the private contractor.

 

7-22-108. Monitoring; right of access.

 

 

(a) The contracting governmental entity at the contractor's expense, shall employ an individual to be responsible for monitoring all aspects of the private contractor's performance under a contract for the operation of a facility pursuant to W.S. 7-22-102. The individual employed as contract monitor shall be qualified to perform this function by reason of education, training and experience as determined by the five (5) state elected officials. At a minimum, the contract monitor shall have completed at least the same training required by this article for detention officers and shall have served a minimum of three (3) years as a detention officer. The monitor, with the approval of the contracting governmental entity, shall appoint staff as necessary to assist in monitoring at the facility, which staff shall be at the contractor's expense and will be solely responsible to the contract monitor. The monitor or his designee shall be provided an on-site work area by the contractor, shall be on-site on a daily basis, and shall have access to all areas of the facility and to inmates and staff at all times. The contractor shall provide any and all data, reports and other materials that the monitor determines are necessary to carry out monitoring responsibilities under this section.

 

(b) The monitor or his designee shall be responsible to and report to the state and any other contracting governmental entity at least monthly, and more often as necessary to ensure proper operation of the facility, concerning the contractor's performance.

 

(c) Members of the public shall have the same right of access to facilities operated by a private contractor pursuant to this article as they do to state operated facilities.

 

7-22-109. Liability and sovereign immunity.

 

 

(a) The contractor shall assume all liability arising under a contract entered into pursuant to W.S. 7-22-102.

 

(b) Neither the sovereign immunity of the state nor the sovereign immunity applicable to any local government shall extend to the contractor. Neither the contractor nor the insurer of the contractor may plead the defense of sovereign immunity in any action arising out of the performance of the contract.

 

(c) Nothing in this article shall be construed to accord to any inmate in any facility or to a member of the public third party beneficiary status.

 

7-22-110. Insurance.

 

 

(a) The contractor shall provide an adequate plan of insurance, specifically including insurance for civil rights claims, as determined by an independent risk management or actuarial firm with demonstrated experience in public liability for state governments. In determining the adequacy of the plan, the firm shall determine whether the insurance is adequate to:

 

(i) Fully indemnify the contracting governmental entity and the state from actions by third parties against the contractor, the contracting governmental entity or, the state or as a result of the contract;

 

(ii) Assure the contractor's ability to fulfill its contract with the contracting governmental entity in all respects and to assure that the contractor is not limited in this ability due to financial liability that results from judgments;

 

(iii) Protect the local government and the state against claims arising as the result of any occurrence during the term of the contract on an occurrence basis; and

 

(iv) Satisfy other requirements specified by the independent risk management or actuarial firm.

 

7-22-111. Termination of contract and resumption of control.

 

 

(a) The board or the local government may, upon demonstration that a breach of contract has occurred and that after the passage of a reasonable period of time the breach has not been cured, without penalty to the state or the local government, cancel a contract for the private operation of a facility at any time on giving ninety (90) days written notice.

 

(b) Notwithstanding any other provision in this article to the contrary, prior to entering a contract for the private operation of a facility, a plan shall be developed by the contractor and approved by the contracting governmental entity establishing the method by which the state or the local government will resume control of the facility or the inmates incarcerated in a leased facility upon contract termination.

 

(c) Any contract entered into under this article for the private operation of a facility shall provide that upon declaration by the state or the local government of any material breach of contract on the part of the private contractor, the state or the local government may, if necessary, assume immediate temporary control of the operation of the facility pending transfer of inmates to another facility.

 

7-22-112. Nondelegation of authority.

 

 

(a) No contract for private correctional services under this article shall authorize, allow or imply a delegation to a private contractor of authority or responsibility to:

 

(i) Classify inmates or place inmates in less restrictive custody or more restrictive custody;

 

(ii) Transfer an inmate, although the contractor may recommend in writing that the state or the local government transfer a particular inmate;

 

(iii) Formulate rules of inmate behavior, violations of which may subject inmates to sanctions, except to the extent that the rules are accepted or modified by the state or the local government;

 

(iv) Take any disciplinary action against an inmate;

 

(v) Grant, deny or revoke good time credits;

 

(vi) Recommend that the parole board either deny or grant parole, provided the contractor may submit written reports that have been prepared in the ordinary course of business unless otherwise requested by the parole board;

 

(vii) Develop procedures for calculating good time credits or inmate release and parole eligibility dates;

 

(viii) Determine inmate eligibility for furlough, compassionate leave, participation in community corrections or work release;

 

(ix) Require an inmate to work, except as directed or authorized by the state or the local government. In connection with work required by the state or the local government, the private contractor shall not have authority to:

 

(A) Approve the type of work that inmates may perform; or

 

(B) Award or withhold wages or good time credits based on the manner in which individual inmates perform such work.

 

7-22-113. Authority of state to contract with local governments.

 

The state may contract with any local government or private contractor which is responsible for the maintenance or operation of a facility to house in the facility inmates or prisoners of the state penitentiary or any other facility operated or under the control of the state, and any local government or private contractor may accept and house such inmates or prisoners in the facility pursuant to any contract with the state. The contract shall specify such matters as are deemed relevant by the state, the local government or the private contractor and shall be approved as to form and content by the Wyoming attorney general.

 

7-22-114. Rulemaking authority.

 

The state or the local government shall promulgate reasonable rules and regulations necessary to carry out this article.

 

7-22-115. Contract authorizing operation required; exception.

 

(a) No private entity shall construct, operate or manage any private jail, prison or other structure to house or incarcerate inmates or prisoners in this state except pursuant to contract under this article.

 

(b) Subsection (a) of this section shall not apply to a nongovernmental community correctional facility or program approved under W.S. 7-18-104(b).

 

7-22-116. Repealed by Laws 2003, Ch. 202, 2.