ENROLLED HOUSE
BILL NO. 1382	By:	Condit, Roan and Walker of the House

				and

		Shortey of the Senate

An Act relating to corrections; amending 21 O.S. 2001, Section 701.12, which relates to aggravating circumstances for murder; deleting reference to guard; amending 57 O.S. 2001, Sections 20, 510, as last amended by Section 1, Chapter 232, O.S.L. 2009, 561.1, as last amended by Section 3, Chapter 455, O.S.L. 2009 and 562 (57 O.S. Supp. 2010, Sections 510 and 561.1), which relate to credits for good behavior and the Oklahoma Corrections Act of 1967; updating language; deleting references to guards; and providing an effective date.

SUBJECT:  Corrections personnel

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1.     AMENDATORY     21 O.S. 2001, Section 701.12, is amended to read as follows:

Section 701.12  Aggravating circumstances shall be:

1.  The defendant was previously convicted of a felony involving the use or threat of violence to the person;

2.  The defendant knowingly created a great risk of death to more than one person;

3.  The person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;

4.  The murder was especially heinous, atrocious, or cruel;

5.  The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;

6.  The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;

7.  The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; or

8.  The victim of the murder was a peace officer as defined by Section 99 of Title 21 of the Oklahoma Statutes this title, or guard correctional employee of an institution under the control of the Department of Corrections, and such person was killed while in performance of official duty.

SECTION 2.     AMENDATORY     57 O.S. 2001, Section 20, is amended to read as follows:

Section 20.  Every county, city or town convict in this state, whether required to work upon the public highways of such the county, city or town, in accordance with the laws of this state, or merely confined in the county, city or town prison, shall receive credit upon his or her fine and costs of One Dollar ($1.00) for each day so confined in prison, or worked upon the public highways, rock pile, or rock crusher, or public work; provided that those prisoners or convicts doing and performing the most efficient work and making the best prisoners, shall be entitled to an additional credit of one (1) day for every five (5) days of work, the guard or custodian of such the prison to determine at the end of each five (5) days of such imprisonment whether or not such the prisoner is entitled to such credit, and to make a record of such the decision and notify the prisoner of the same.

SECTION 3.     AMENDATORY     57 O.S. 2001, Section 510, as last amended by Section 1, Chapter 232, O.S.L. 2009 (57 O.S. Supp. 2010, Section 510), is amended to read as follows:

Section 510.  A.  The Director of the Department of Corrections shall have the following specific powers and duties relating to the penal institutions:

1.  To appoint, subject to the approval of the State Board of Corrections, a warden or superintendent for each penal institution, who shall qualify for the position by character, personality, ability, training, and successful administrative experience in the correctional field; and if the person is not the incumbent warden or superintendent of a penal institution, the person shall have a college degree with a major in the behavioral sciences.  As used in this section, “major in the behavioral sciences” means a major in psychology, sociology, criminology, education, corrections, human relations, guidance and counseling, administration, criminal justice administration, or penology;

2.  To fix the duties of the wardens and superintendents and to appoint and fix the duties and compensation of such other personnel for each institution as may be necessary for the proper operation thereof.  However, correctional officers and guards hired after November 1, 1995, shall be subject to the following qualifications:

a.	the minimum age for service shall be twenty (20) years of age.  The Director shall have the authority to establish the maximum age for correctional officers entering service,

b.	possession of a minimum of thirty (30) semester hours from an accredited college or university, or possession of a high school diploma acquired from an accredited high school or GED equivalent testing program and graduation from a training course conducted by or approved by the Department and certified by the Council on Law Enforcement Education and Training either prior to employment or during the first six (6) months of employment,

c.	be of good moral character,

d.	before going on duty alone, satisfactory completion of an adequate training program for correctional officers and guards, as prescribed and approved by the State Board of Corrections,

e.	satisfactory completion of minimum testing or professional evaluation through the Merit System of Personnel Administration to determine the fitness of the individual to serve in the position written evaluations shall be submitted to the Department of Corrections, and

f.	satisfactory completion of a physical in keeping with the conditions of the job description on an annual basis and along the guidelines as established by the Department of Corrections;

3.  To designate as peace officers qualified personnel in any Department of Corrections job classifications.  The Director shall designate as peace officers correctional officers who are employed in positions requiring said designation.  The peace officer authority of employees designated as peace officers shall be limited to: maintaining custody of prisoners; preventing attempted escapes; pursuing, recapturing and incarcerating escapees and parole or probation violators and arresting such escapees, parole or probation violators, serving warrants, and performing any duties specifically required for the job descriptions.  Such powers and duties of peace officers may be exercised for the purpose of maintaining custody, security, and control of any prisoner being transported outside this state as authorized by the Uniform Criminal Extradition Act.  To become qualified for designation as peace officers, employees shall meet the training and screening requirements conducted by the Department and certified by the Council on Law Enforcement Education and Training within twelve (12) months of employment or, in the case of employees designated as peace officers on or before July 1, 1997, by July 1, 1998, and shall not be subject to Section 3311 of Title 70 of the Oklahoma Statutes;

4.  To maintain such industries, factories, plants, shops, farms, and other enterprises and operations, hereinafter referred to as prison industries, at each institution as the State Board of Corrections deems necessary or appropriate to employ the prisoners or teach skills, or to sustain the institution; and as provided for by policies established by the State Board of Corrections, to allow compensation for the work of the prisoners, and to provide for apportionment of inmate wages, the amounts thus allowed to be kept in accounts by the Board for the prisoners and given to the inmates upon discharge from the institution, or upon an order paid to their families or dependents or used for the personal needs of the prisoners.  Any industry that employs prisoners shall be deemed a “State Prison Industry” if the prisoners are paid from state funds including the proceeds of goods sold as authorized by Section 123f of Title 74 of the Oklahoma Statutes.  Any industry in which wages of prisoners are paid by a nongovernmental person, group, or corporation, except those industries employing prisoners in work-release centers under the authority of the Department of Corrections shall be deemed a “Private Prison Industry”;

5.  To assign residences at each institution to institutional personnel and their families;

6.  To provide for the education, training, vocational education, rehabilitation, and recreation of prisoners;

7.  To regulate the operation of canteens for prisoners;

8.  To prescribe rules for the conduct, management, and operation of each institution, including rules for the demeanor of prisoners, the punishment of recalcitrant prisoners, the treatment of incorrigible prisoners, and the disposal of property or contraband seized from inmates or offenders under the supervision of the Department;

9.  To transfer prisoners from one institution to another;

10.  To transfer to a state hospital for the mentally ill for care and treatment, any prisoner who appears to be mentally ill.  The prisoner shall be returned to the institution when the superintendent of the hospital certifies that the prisoner has been restored to mental health;

11.  To establish procedures that ensure inmates are educated and provided with the opportunity to execute advance directives for health care in compliance with Section 3101.2 of Title 63 of the Oklahoma Statutes.  The procedures shall ensure that any inmate executing an advanced directive for health care is competent and executes the directive with informed consent;

12.  To maintain courses of training and instruction for employees at each institution;

13.  To maintain a program of research and statistics;

14.  To provide for the periodic audit, at least once annually, of all funds and accounts of each institution and the funds of each prisoner;

15.  To provide, subject to rules established by the State Board of Corrections, for the utilization of inmate labor for any agency of the state, city, town, or subdivision of this state, upon the duly authorized request for such labor by the agency.  The inmate labor shall not be used to reduce employees or replace regular maintenance or operations of the agency.  The inmate labor shall be used solely for public or state purposes.  No inmate labor shall be used for private use or purpose.  Insofar as it is practicable, all inmate labor shall be of such a nature and designed to assist and aid in the rehabilitation of inmates performing the labor;

16.  To provide clerical services for, and keep and preserve the files and records of, the Pardon and Parole Board; make investigations and inquiries as to prisoners at the institutions who are to be, or who might be, considered for parole or other clemency; assist prisoners who are to be, or who might be, considered for parole or discharge in obtaining suitable employment in the event of parole or discharge; report to the Pardon and Parole Board, for recommendation to the Governor, violations of terms and conditions of paroles; upon request of the Governor, make investigations and inquiries as to persons who are to be, or who might be, considered for reprieves or leaves of absence; report to the Pardon and Parole Board, for recommendation to the Governor, whether a parolee is entitled to a pardon, when the terms and conditions of the parole have been completed; make presentence investigations for, and make reports thereof to, trial judges in criminal cases before sentences are pronounced; supervise persons undergoing suspended sentences, or who are on probation or parole; and develop and operate, subject to the policies and guidelines of the Board, work-release centers, community treatment facilities or prerelease programs at appropriate sites throughout this state;

17.  To establish an employee tuition assistance program and promulgate rules in accordance with the Administrative Procedures Act for the operation of the program.  The rules shall include, but not be limited to, program purposes, eligibility requirements, use of tuition assistance, service commitment to the Department, reimbursement of tuition assistance funds for failure to complete course work or service commitment, amounts of tuition assistance and limitations, and record keeping;

18.  To establish an employee recruitment and referral incentive program and promulgate rules in accordance with the Administrative Procedures Act for the operation of the program.  The rules shall include, but not be limited to, program purposes, pay incentives for employees, eligibility requirements, payment conditions and amounts, payment methods, and record keeping;

19.  To provide reintegration referral services to any person discharged from the state custody who has volunteered to receive reintegration referral services.  The Director may assign staff to refer persons discharged from state custody to services.  The Director shall promulgate rules for the referral process.  All reintegration referral services shall be subject to the availability of funds;

20.  To conduct continual planning and research and periodically evaluate the effectiveness of the various correctional programs instituted by the Department; manage the designing, building, and maintaining of all the capital improvements of the Department; establish and maintain current and efficient business, bookkeeping, and accounting practices and procedures for the operations of all institutions and facilities, and for the Department’s fiscal affairs; conduct initial orientation and continuing in-service training for the Department employees; provide public information services; inspect and examine the condition and management of state penal and correctional institutions; investigate complaints concerning the management of prisons or alleged mistreatment of inmates thereof; and hear and investigate complaints as to misfeasance or nonfeasance of employees of the Department;

21.  To authorize any division of the Department to sell advertising in any Department-approved publication, media production or other informational material produced by the Department; provided, that such advertising shall be approved by the Director or designee prior to acceptance for publication.  The sale of advertising and negotiation of rates for the advertising shall not be subject to The Oklahoma Central Purchasing Act or the Administrative Procedures Act.  The Department shall promulgate rules establishing criteria for accepting or using advertisements as authorized in this paragraph; and

22.  To issue subpoenas to assist or further investigations into allegations of crimes committed in public or private prisons within the State of Oklahoma.  Subpoenas issued by the Director shall be enforced by the District Court in Oklahoma County, Oklahoma.

B.  When an employee of the Department of Corrections has been charged with a violation of the rules of the Department or with a felony pursuant to the provisions of a state or federal statute, the Director may, in the Director’s discretion, suspend the charged employee, in accordance with the Oklahoma Personnel Act and/or the Merit System of Personnel Administration Rules, pending the hearing and final determination of the charges.  Notice of suspension shall be given by the Director, in accordance with the provisions of the Oklahoma Personnel Act.  If after completion of the investigation of the charges, it is determined that such charges are without merit or are not sustained before the Oklahoma Merit Protection Commission or in a court of law, the employee shall be reinstated and shall be entitled to receive all lost pay and benefits.

This subsection shall in no way deprive an employee of the right of appeal according to the Oklahoma Personnel Act.

SECTION 4.     AMENDATORY     57 O.S. 2001, Section 561.1, as last amended by Section 3, Chapter 455, O.S.L. 2009 (57 O.S. Supp. 2010, Section 561.1), is amended to read as follows:

Section 561.1  A.  Except as otherwise provided by subsection K of this section, prior to entering into a contract with any private prison contractor for construction or operation, or both, of a correctional facility, the Department of Corrections shall establish a process for requesting proposals or negotiated contracts from such contractors.  The Department of Corrections shall develop criteria for the process by which a contractor for the construction or operation, or both, of a private prison is to be awarded a contract.  The criteria shall be subject to approval by the State Board of Corrections.  The criteria for selection of a site for a proposed facility to be constructed or operated, or both, by a private contractor shall include, but shall not be limited to, the availability of medical services, support services, transportation services and the availability of potential employees who would be qualified to perform required functions at a state correctional facility.

B.  Any contract between the Department of Corrections 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:

1.  Requiring the contractor to provide said services in a facility which meets accreditation standards established by the American Correctional Association;

2.  Requiring the contractor to receive accreditation for said facility from the American Correctional Association, within three (3) years of commencement of operations of the facility;

3.  Requiring the contractor to 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 a municipality, written authorization from the board of county commissioners of the county in which the facility is to be located; and

4.  Granting the Department the option at the beginning of each fiscal year pursuant to an agreement, to purchase any such facility, with or without inventory or other personal property, at a predetermined price, which shall be negotiated and included in a schedule or a formula to be contained in the original agreement.  Such agreements relating to a correctional facility, the construction of which was financed or is to be financed by obligations issued from a local governmental entity the repayment of which is to be made in whole or in part from rentals from the State of Oklahoma or the Department of Corrections, shall be submitted to the Oklahoma Bond Oversight Commissions as provided in subsection I of this section.

C.  A contractor proposing to enter a contract with the Department of Corrections for construction or operation, or both, of a correctional facility pursuant to this section must demonstrate:

1.  The qualifications and the operations and management experience to carry out the terms of the contract; and

2.  The ability to comply with the standards of the American Correctional Association and with specific court orders.

D.  In addition to meeting the requirements specified in the requests for proposals, a proposal for the construction and operation of a correctional facility must:

1.  Provide for regular, on-site monitoring by the Department of Corrections;

2.  Acknowledge that payment by the state is subject to the availability of appropriations;

3.  Provide for payment of a maximum amount per fiscal year;

4.  Demonstrate a cost benefit to the State of Oklahoma when compared to the level and quality of programs provided by state-operated facilities that have similar types of inmates at an operational cost not more than the cost of housing inmates in similar facilities and providing similar programs to those types of inmates in state-operated facilities.  The Department of Corrections shall be responsible for determining the cost/benefit of the proposal;

5.  Permit the state to terminate the contract for cause;

6.  Contain a proposed per diem operational cost per inmate for the initial year and subsequent years of operations;

7.  Subject to appropriations, provide that cost adjustments may be made only once each fiscal year, to take effect at the beginning of the next fiscal year using as the maximum percentage increase, if any, an increase not to exceed the previous year's Consumer Price Index for All Urban Consumers (CPI-U) as prepared by the United States Bureau of Labor Statistics, except as otherwise provided by subsection K of this section;

8.  Have an initial contract term of not more than one (1) year, with an option to renew for additional periods not to exceed twenty (20) years;

9.  If the proposal includes construction of a facility, contain a performance bond approved by the Department that is adequate and appropriate for the proposed contract;

10.  Provide for assumption of liability by the private vendor for all claims arising from the services performed under the contract by the private vendor;

11.  Provide for an adequate plan of insurance for the private vendor and its officers, guards, employees, and agents against all claims, including claims based on violations of civil rights arising from the services performed under the contract by the private vendor;

12.  Provide for an adequate plan of insurance to protect the state against all claims arising from the services performed under the contract by the private vendor and to protect the state from actions by a third party against the private vendor, its officer officers, guards, employees, and agents as a result of the contract;

13.  Provide plans for the purchase and assumption of operations by the state in the event of the bankruptcy of the private vendor; and

14.  Contain comprehensive standards for conditions of confinement.

E.  At the beginning of each fiscal year, the Department of Corrections shall determine the budgeted average daily cost per inmate.  There shall be a separate computation of budgeted average daily cost for maximum security, medium security, minimum security, and community facilities.  This information shall be presented to the State Board of Corrections for informational purposes only.  After the close of each fiscal year, the Department shall determine the actual average daily cost per inmate for the operational costs at each major category of correctional facility.  There shall be a separate computation of the average daily rate for maximum security, medium security, minimum security, and community facilities.  The Department shall present to the State Board of Corrections at its January meeting comparative data on budgeted daily cost versus actual daily cost, and, after appropriate review and analysis, the Board shall adopt as a final action of the Board an average daily cost per inmate by facility category for the immediately preceding fiscal year.

F.  If a request for proposal process is utilized and no proposals conform to the established criteria, the Department shall prepare an additional request for proposals.  The Department of Corrections shall evaluate the proposals within thirty (30) days of receipt from the prospective contractor.  The Department of Corrections shall specifically determine whether a proposal meets the requirements of paragraph 4 of subsection D of this section by comparing the daily rate for housing and care of inmates pursuant to any proposed contract with a private contractor to the daily rate for housing and care of inmates at the comparable type of facility operated by the Department of Corrections using the information provided pursuant to paragraph 6 of subsection D of this section.  The Department shall evaluate proposals taking into account any direct or indirect costs that would continue to be paid by the Department of Corrections including, but not limited to, transportation, records management, discipline, general administration, management of inmate trust funds, and major medical coverage.  Such costs shall be added to the proposed per diem of the private vendor when comparing the total per diem costs of the state operating facilities.

G.  If the Department of Corrections proposes to enter into a contract for the construction or the operation, or both, of a private prison, the Department shall compare both the capital costs and the operating costs for the facility to the imputed capital costs and the projected operating costs of a comparable facility constructed and operated by the Department of Corrections.

H.  The Department of Corrections shall deliver to the State Board of Corrections the top three qualified prospective private prison contractors identified pursuant to this section and pursuant to Section 561 of this title together with the information reviewed and analyzed by the Department of Corrections during analysis of the proposals as required by this section.  The Board of Corrections shall evaluate the information provided and shall make a final decision selecting the contractor within fifteen (15) days of receipt of the information.

I.  Any contract subject to the provisions of this section entered into by the Board of Corrections shall be subject to the approval of the Council on Bond Oversight in the same manner as provided by law for the review of issuance of obligations by State Governmental Entities as prescribed by Section 695.8 of Title 62 of the Oklahoma Statutes.

J.  Before submission of the proposed contract to the Council on Bond Oversight, and prior to the date as of which the proposed contract is executed by the Board of Corrections, the Attorney General and the Director of the Department of Central Services shall review the proposed final version of the contract.  The Attorney General and the Director of the Department of Central Services shall have a period of fifteen (15) days from receipt of the proposed final version of the contract to approve the contract and execute the document.  If either the Attorney General or the Director of the Department of Central Services has objections to the proposed contract, the objections shall be communicated in writing to the Department of Corrections.  The Department of Corrections shall take appropriate action regarding the objections and shall resubmit the proposed contract for additional review.  The Attorney General and the Department of Central Services shall have an additional fifteen-day period to approve the proposed contract and to execute the document.  Failure of the Attorney General or the Director of the Department of Central Services, respectively, to act within the fifteen-day period shall constitute approval of the respective official to the proposed final version of the contract.  The contract shall contain a separate signature block or line for signature by the Attorney General and the Department of Central Services.  The contract shall contain a statement to be executed by the Attorney General and the Director of the Department of Central Services that each one of them, respectively, has reviewed the proposed contract for compliance with the provisions of this section and Section 561 of this title, and all other applicable provisions of law and that the contract conforms with those requirements.  Neither the private prison contractor nor the State Board of Corrections shall execute the contract until the document has been executed by the Attorney General and the Director of the Department of Central Services as required by this subsection unless the approval of the respective official has been made as a result of failure to take action within the fifteen-day period prescribed by this subsection.

K.  The State Board of Corrections may renew a private prison contract which is in effect for any time period during the fiscal year ending June 30, 2009, if the Board determines that the renewal of such contract will result in a reduced per diem in the fiscal year ending June 30, 2010.  If the State Board of Corrections makes such determination, the contract shall not be subject to the restrictions of paragraph 7 of subsection D of this section and the Board shall negotiate the contract based upon such terms as the Board deems to be in the best interest of operational efficiency, including the inmate population, per inmate cost, public safety and such other terms as the State Board of Corrections determines to be relevant to such contract.  The State Board of Corrections shall have the authority to negotiate the term of any contract executed pursuant to the provisions of this subsection subject to the availability of appropriations to the Department of Corrections each year.

SECTION 5.     AMENDATORY     57 O.S. 2001, Section 562, is amended to read as follows:

Section 562.  The Department of Corrections is hereby authorized to employ Correctional Officer Cadets that will meet all the qualifications established for correctional officers and guards in Section 510 of this title.  After successful completion of the probationary period required in subsection D of Section 840-4.13 of Title 74 of the Oklahoma Statutes, Correctional Officer Cadets will be promoted to Correctional Officer I.

SECTION 6.  This act shall become effective November 1, 2011.

Passed the House of Representatives the 1st day of March, 2011.

	
Presiding Officer of the House of
	Representatives

Passed the Senate the 26th day of April, 2011.

	
Presiding Officer of the Senate