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 bythe state;
(ii) "Contracting governmental entity" means the stateor a local government which has entered into a contract with a contractorpursuant to this article;
(iii) "Contractor" or "private contractor"means a person who has entered into a contract with the state or a localgovernment pursuant to W.S. 7-22-102;
(iv) "Deadly force" means force that is likely tocause death or serious bodily injury;
(v) "Facility" means a jail, prison or otherincarceration facility constructed or operated pursuant to a contract underW.S. 7-22-102;
(vi) "Five (5) state elected officials" means thegovernor, secretary of state, state auditor, state treasurer and superintendentof public instruction;
(vii) "Local government" means any city, town, jointpowers board or county in Wyoming;
(viii) "Nondeadly force" means force that normally wouldcause neither death nor serious bodily injury;
(ix) "Private-company detention officer" means aprivate contractor's employee serving as a detention officer at a facilitybeing operated pursuant to a contract under W.S. 7-22-102;
(x) "State" means the state of Wyoming acting throughthe office of the governor.
7-22-102. Authority to contract; general conditions.
(a) The state or a local government may contract with privateentities for the construction, lease (as lessor or lessee), acquisition,improvement, operation, maintenance, purchase or management of facilities andservices as provided in this article, but only after receiving the consent ofthe five (5) state elected officials as to site, number of beds andclassifications of inmates or prisoners to be housed in the facility.
(b) No contract shall be entered into or renewed unless thecontracting governmental entity, with the concurrence of the five (5) stateelected officials, determines the contract offers substantial cost savings tothe contracting governmental entity and at least the same quality of servicesprovided by the state or by similar local governments.
(c) After receiving the majority consent of the five (5) stateelected officials as to the site, number of beds and classifications of inmatesor prisoners to be housed in the facility, the state or the local governmentmay contract with private entities for the construction, lease (as lessor orlessee), acquisition, improvement, operation, maintenance, purchase ormanagement of facilities, either:
(i) For the incarceration of its own inmates or prisoners;
(ii) For the incarceration of prisoners or inmates of the stateor any other local government;
(iii) For the incarceration of any prisoners or inmates:
(A) Under the jurisdiction of the United States government orany of its offices, departments or agencies;
(B) Otherwise under the control of the United States governmentor any of its offices, departments or agencies; or
(C) Lawfully confined by any jurisdiction within the UnitedStates.
(d) The state or the local government may reject or returnprisoners from outside the state. Prisoners or inmates of out-of-state,nonfederal jurisdictions shall not be incarcerated in any facility operated bya local government entity under this article without the consent of themajority of the five (5) elected officials of this state. At no time shall thenumber of prisoners from out-of-state, nonfederal jurisdictions incarcerated ina facility operated by a local government entity under this article exceedthirty percent (30%) of the capacity of that facility. Any out-of-state,nonfederal prisoner shall be returned to the jurisdiction of origin to bereleased from custody by them, outside the state of Wyoming at the appropriatetime.
(e) Notwithstanding any other provision of law or any rules orregulations adopted pursuant to statutory authority, a negotiated selectionprocess, including requests for proposals from a list of applicantsprequalified by the state or the local government, shall be applicable to anycontract between the state or a local government and any private entity enteredinto under the authority of this article. Standards for prequalification ofapplicants under this subsection shall be promulgated as rules by the state orlocal government entity under the Wyoming Administrative Procedure Act beforethe commencement of the selection process.
(f) Rules and regulations promulgated under this article shallensure that no contract entered into under this section shall result in thesignificant displacement of employed workers within a sixty (60) mile radius ofthe community.
7-22-103. Incarceration of inmates in privately operated facility.
At the direction of the state, in the caseof a person sentenced to the custody of the department of corrections to servea term of imprisonment in a state penal institution, or at the direction of thelocal government in the case of a person sentenced to imprisonment in a city orcounty jail, the person sentenced to imprisonment may be incarcerated in afacility constructed or operated by a private entity pursuant to a contractunder this article.
7-22-104. Contract term and renewal.
The initial contract for the operation of afacility or for incarceration of prisoners or inmates therein shall be for aperiod of not more than three (3) years with an option to renew biannuallythereafter. Contracts for purchase or lease (as lessor or lessee) of afacility shall not exceed a term of thirty (30) years. Any contract for theconstruction or operation of a facility shall be subject to annualappropriation 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 theAmerican correctional association standards in force at the time ofcontracting. The facility shall meet the percentage of standards required foraccreditation by the American correctional association, except where thecontract requires compliance with a higher percentage of nonmandatorystandards. The contract may allow the contractor an extension of time in whichto meet a lower percentage of nonmandatory standards only when the contract isfor the renovation of an existing facility, in which case the contractor shallhave not longer than three (3) months to meet those standards that areapplicable to the physical plant.
(b) Facilities governed by this article shall comply with allfederal and state constitutional standards, state and local laws, and all courtorders.
7-22-106. Private-company detention officers; use of force.
(a) No person shall be employed as a private-company detentionofficer unless the person has been trained in the use of force and the use offirearms in accordance with American correctional association standards, 3-4070through 3-4091, and, at the contractor's expense, has satisfactorily completeda basic training program approved by the state. If the training is providedunder contract with the state, the costs of a basic training program shall notbe greater than the costs of peace officer training at the Wyoming lawenforcement academy.
(b) A private-company detention officer may use force onlywhile on the grounds of a facility or while transporting inmates. Nondeadlyforce and deadly force shall be used by a private-company detention officeronly as provided in this section.
(c) A private-company detention officer is authorized to useonly such nondeadly force as the circumstances require in the followingsituations:
(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 pursuantto the provisions of subsection (a) of this section, shall have the right tocarry and use firearms and shall exercise such authority and use deadly forceonly as a last resort when reasonably necessary to prevent the commission of aviolent felony as defined in W.S. 6-1-104(a)(xii), to prevent the escape of aconvicted felon from custody, or to defend the officer or any other person fromimminent danger of death or serious bodily injury.
(e) Within three (3) days following an incident involving theuse of force against an inmate or another, the employee shall file a writtenreport describing the incident with the administrative staff of the facilityand 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 entityin any agreement, formal or informal, with local law enforcement agenciesconcerning the latter's obligations in the event of a riot, escape or otheremergency situation.
7-22-107. Employee training requirements.
All employees of a facility operated by aprivate contractor pursuant to this article shall receive, at a minimum, thesame quality and quantity of training as that required for employees of stateoperated facilities. If any or all of the applicable American correctionalassociation standards relating to training are more stringent than aregovernmental standards, training shall be provided in accordance with the morestringent standards. All training expenses shall be the responsibility of theprivate contractor.
7-22-108. Monitoring; right of access.
(a) The contracting governmental entity at the contractor'sexpense, shall employ an individual to be responsible for monitoring allaspects of the private contractor's performance under a contract for theoperation of a facility pursuant to W.S. 7-22-102. The individual employed ascontract monitor shall be qualified to perform this function by reason ofeducation, training and experience as determined by the five (5) state electedofficials. At a minimum, the contract monitor shall have completed at least thesame training required by this article for detention officers and shall haveserved a minimum of three (3) years as a detention officer. The monitor, withthe approval of the contracting governmental entity, shall appoint staff asnecessary to assist in monitoring at the facility, which staff shall be at thecontractor'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 thecontractor, shall be on-site on a daily basis, and shall have access to allareas of the facility and to inmates and staff at all times. The contractorshall provide any and all data, reports and other materials that the monitordetermines are necessary to carry out monitoring responsibilities under thissection.
(b) The monitor or his designee shall be responsible to andreport to the state and any other contracting governmental entity at leastmonthly, and more often as necessary to ensure proper operation of thefacility, concerning the contractor's performance.
(c) Members of the public shall have the same right of accessto facilities operated by a private contractor pursuant to this article as theydo to state operated facilities.
7-22-109. Liability and sovereign immunity.
(a) The contractor shall assume all liability arising under acontract entered into pursuant to W.S. 7-22-102.
(b) Neither the sovereign immunity of the state nor thesovereign immunity applicable to any local government shall extend to thecontractor. Neither the contractor nor the insurer of the contractor may pleadthe defense of sovereign immunity in any action arising out of the performanceof the contract.
(c) Nothing in this article shall be construed to accord to anyinmate in any facility or to a member of the public third party beneficiarystatus.
7-22-110. Insurance.
(a) The contractor shall provide an adequate plan of insurance,specifically including insurance for civil rights claims, as determined by anindependent risk management or actuarial firm with demonstrated experience inpublic liability for state governments. In determining the adequacy of theplan, the firm shall determine whether the insurance is adequate to:
(i) Fully indemnify the contracting governmental entity and thestate from actions by third parties against the contractor, the contractinggovernmental entity or, the state or as a result of the contract;
(ii) Assure the contractor's ability to fulfill its contractwith the contracting governmental entity in all respects and to assure that thecontractor is not limited in this ability due to financial liability thatresults from judgments;
(iii) Protect the local government and the state against claimsarising as the result of any occurrence during the term of the contract on anoccurrence basis; and
(iv) Satisfy other requirements specified by the independentrisk management or actuarial firm.
7-22-111. Termination of contract and resumption of control.
(a) The board or the local government may, upon demonstrationthat a breach of contract has occurred and that after the passage of areasonable period of time the breach has not been cured, without penalty to thestate or the local government, cancel a contract for the private operation of afacility at any time on giving ninety (90) days written notice.
(b) Notwithstanding any other provision in this article to thecontrary, prior to entering a contract for the private operation of a facility,a plan shall be developed by the contractor and approved by the contractinggovernmental entity establishing the method by which the state or the localgovernment will resume control of the facility or the inmates incarcerated in aleased facility upon contract termination.
(c) Any contract entered into under this article for theprivate operation of a facility shall provide that upon declaration by thestate or the local government of any material breach of contract on the part ofthe private contractor, the state or the local government may, if necessary,assume immediate temporary control of the operation of the facility pendingtransfer of inmates to another facility.
7-22-112. Nondelegation of authority.
(a) No contract for private correctional services under thisarticle shall authorize, allow or imply a delegation to a private contractor ofauthority or responsibility to:
(i) Classify inmates or place inmates in less restrictive custodyor more restrictive custody;
(ii) Transfer an inmate, although the contractor may recommendin writing that the state or the local government transfer a particular inmate;
(iii) Formulate rules of inmate behavior, violations of which maysubject inmates to sanctions, except to the extent that the rules are acceptedor 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 grantparole, provided the contractor may submit written reports that have beenprepared in the ordinary course of business unless otherwise requested by theparole board;
(vii) Develop procedures for calculating good time credits orinmate release and parole eligibility dates;
(viii) Determine inmate eligibility for furlough, compassionateleave, participation in community corrections or work release;
(ix) Require an inmate to work, except as directed or authorizedby the state or the local government. In connection with work required by thestate or the local government, the private contractor shall not have authorityto:
(A) Approve the type of work that inmates may perform; or
(B) Award or withhold wages or good time credits based on themanner in which individual inmates perform such work.
7-22-113. Authority of state to contract with local governments.
The state may contract with any localgovernment or private contractor which is responsible for the maintenance oroperation of a facility to house in the facility inmates or prisoners of thestate penitentiary or any other facility operated or under the control of thestate, and any local government or private contractor may accept and house suchinmates 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 formand content by the Wyoming attorney general.
7-22-114. Rulemaking authority.
The stateor the local government shall promulgate reasonable rules and regulationsnecessary to carry out this article.
7-22-115. Contract authorizing operation required; exception.
(a) No private entity shall construct, operate or manage anyprivate jail, prison or other structure to house or incarcerate inmates orprisoners in this state except pursuant to contract under this article.
(b) Subsection (a) of this section shall not apply to anongovernmental community correctional facility or program approved under W.S.7-18-104(b).
7-22-116. Repealed by Laws 2003, Ch. 202, 2.