Bill Text: AZ HB2783 | 2024 | Fifty-sixth Legislature 2nd Regular | Introduced
Bill Title: Private prisons; contracts; requirements
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced) 2024-02-19 - House read second time [HB2783 Detail]
Download: Arizona-2024-HB2783-Introduced.html
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REFERENCE TITLE: private prisons; contracts; requirements |
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State of Arizona House of Representatives Fifty-sixth Legislature Second Regular Session 2024
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HB 2783 |
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Introduced by Representatives Smith: Marshall, Montenegro
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An Act
amending sections 41-1609 and 41-1609.01, Arizona Revised Statutes; amending title 41, chapter 11, Arizona Revised Statutes, by adding article 9; RELATING to private prisons.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 41-1609, Arizona Revised Statutes, is amended to read:
41-1609. Agreements with federal or private agencies and institutions; contract review; emergency contracts
A. The department may enter into agreements with the federal government, other states or agencies of the federal government or other states for such compensation upon on which they agree to accept or deliver adult offenders or to administer correctional programs. Notwithstanding the provisions of section 35-193, any funds monies received by the department under the agreements shall be kept in a separate revolving fund for current usage and shall not revert to the state general fund if unexpended at the close of a fiscal year.
B. The department may contract with any private or public institution that is located inside or outside this state for facilities or the operation of facilities that are dedicated to the confinement of persons who are committed to the department. Notwithstanding chapter 4, article 7 of this title and article 4 of this chapter, the contract may include a purchase option and if the contract has a per diem provision the contract may include a provision that allows a portion of the per diem to be applied to reduce the purchase price. All contracts entered into pursuant to this subsection shall comply with article 9 of this chapter.
C. The department shall submit all contracts entered into pursuant to subsection B of this section to the attorney general to determine if the contract is within the authority granted under the laws of this state and in proper form. All contracts involving the detention or incarceration of adult offenders shall conform to the requirements of section 41-1609.01.
D. Notwithstanding subsection C of this section, the department may enter into emergency contracts pursuant to section 41-2537 with private or public institutions for facilities or the operation of facilities that are dedicated to the confinement of persons who are committed to the department.
E. The director may declare an emergency for acts of God, natural catastrophes, prison riots and overcrowding. In an emergency, the director shall:
1. Confine persons who are committed to the department in either of the following:
(a) An existing public institution.
(b) A private institution that is described in subsection B of this section.
2. Up to twenty-four hours before declaring the emergency, notify the governor and the attorney general of the emergency and the need to relocate persons who are committed to the department to another existing public or private facility established pursuant to sections 41-1609.01 and 41-1609.02.
3. Within thirty days after declaring the emergency, determine the length of the emergency confinement. If the director determines that the emergency confinement will exceed six months in duration, the emergency contract shall comply with sections 41-1609.01 and 41-1609.02.
F. Notwithstanding subsection E, paragraph 2 of this section, if the director declares that an emergency exists due to the overcrowding of a public or private correctional facility, the director shall discuss with the governor, the attorney general and the majority and minority leadership in the senate and the house of representatives relocating the inmates from the overcrowded facility to another facility before relocating the inmates.
G. An emergency contract shall not exceed one year in duration.
Sec. 2. Section 41-1609.01, Arizona Revised Statutes, is amended to read:
41-1609.01. Adult incarceration contracts; criteria
A. On publication, any request for proposals shall be provided to the joint legislative budget committee for its review.
B. To be considered for an award of a contract, the proposer must demonstrate that it has:
1. The qualifications, operations and management experience and experienced personnel necessary to carry out the terms of the contract, including annual improvement of the performance metrics required in section 41-1692.
2. The ability to comply with applicable correctional standards and any specific court order, if required.
3. A demonstrated history of successful operation and management of other secure facilities.
C. The proposer of a contract for correctional services must agree that this state may cancel the contract at any time after the first year of operation, without penalty to this state, on giving ninety days' written notice.
D. A contract may provide for annual contract price or cost adjustments to the base achievement contract prescribed in section 41-1693, except that any adjustments may be made only once each year effective on the anniversary of the effective date of the contract. If any adjustment is made pursuant to the terms of the contract, it shall be applied to the total payments made to the contractor for the previous contract year and shall not exceed the per cent percent of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the next previous calendar year.
E. Any price or cost adjustments to a contract different than those authorized in subsection D of this section or section 41-1693 may be made only if the legislature specifically authorizes the adjustments and appropriates monies for that purpose, if required.
F. An award of a contract shall not be made unless an acceptable proposal is received pursuant to any request for proposals. For the purposes of this subsection, "acceptable proposal" means a proposal that substantially meets all of the requirements or conditions set forth in this section and sections 41-1692 and 41-1693 and that meets all of the requirements in the request for proposals.
G. Except for financial incentives under section 41-1693, a proposal shall not be accepted unless the proposal offers cost savings to this state.
H. A proposal shall not be accepted unless both of the following apply:
1. The proposal offers a level and quality of services that are at least functionally equal to those that would be provided by this state.
2. The proposal demonstrates the ability to improve on the performance metrics prescribed in section 41-1692.
I. Notwithstanding section 41-2546, a contract to provide correctional services as described in this section may be for an initial period of not more than ten years.
J. The initial contract may include an option to renew for two subsequent renewal periods of not more than five years each.
K. A contract for correctional services described in this section shall not be entered into unless the following requirements are met:
1. The contractor provides audited financial statements for the previous five years, or for each of the years the contractor has been in operation, if fewer than five years, and provides other financial information as requested.
2. The contractor provides an adequate plan of insurance, specifically including coverage or insurance for civil rights claims and liabilities as approved by the risk management division of the department of administration.
3. The contractor agrees to be liable for the costs of any emergency, public safety or security services provided to the contractor by the state or any political subdivision of the state and to reimburse the state or any political subdivision of the state for the cost of any such services.
L. The sovereign immunity of this state does not apply 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.
M. A contract for correctional services shall not authorize, allow or imply a delegation of authority or responsibility to a prison contractor for any of the following:
1. Developing and implementing procedures for calculating inmate release dates.
2. Developing and implementing procedures for calculating and awarding sentence credits.
3. Approving the type of work inmates may perform and the wages or sentence credits that may be given to inmates engaging in the work.
4. Granting, denying or revoking sentence credits, placing an inmate under less restrictive custody or more restrictive custody or taking any disciplinary actions.
Sec. 3. Title 41, chapter 11, Arizona Revised Statutes, is amended by adding article 9, to read:
ARTICLE 9. PRIVATE PRISON CONTRACT REQUIREMENTS
AND CORRECTIONAL DATA REPORTING
41-1691. Definitions
In this article, unless the context otherwise requires:
1. "Baseline job placement rate" means the average of the department's job placement rate for fiscal years 2021-2022 and 2022-2023 as measured by unemployment insurance contributions.
2. "Baseline return to prison rate" means The average of the department's return to prison rates for fiscal years 2020-2021, 2021-2022 and 2022-2023.
3. "Contractor" means an entity that contracts with any governmental entity to provide correctional services for offenders.
4. "Correctional services":
(a) Means services that are necessary for the operation of a facility.
(b) Includes food, clothing, security, programs and health care.
5. "Department" means the state department of corrections.
6. "Eligible offenders" means offenders who were under the jurisdiction of a facility for at least the final two years of each offender's sentence or fifty-one percent of each offender's sentence, WHICHEVER is less.
7. "Facility" means a correctional facility that is operated by the department or that is under contract with the department and that houses offenders in a secure or nonsecure setting.
8. "Housing placement failure" means each offender who is released from a facility and who fails to attain housing placement within one week after release.
9. "Idle time":
(a) means The length of time an offender could be participating in education or vocational PROGRAMMING BUT is otherwise unoccupied.
(b) Does not include time for rest, personal care, meals and other activities that would be commonly understood to make the offender otherwise unable to participate in program activities.
10. "Job placement" means Any occupation or combination of occupations for which a released offender can provide documentation of verifiable wage-earning hours in the amount of at least one hundred thirty hours over a thirty-day period.
11. "job placement rate" means the percentage of offenders who are released from a facility in a given fiscal year and who attained and maintained a job placement for at least nine months, at least part of which was in the same fiscal year, compared to all offenders who were released from that facility in the same fiscal year, as measured by unemployment insurance conditions.
12. "Return to prison rate" means The percentage of offenders who are released from a facility within the previous forty-eight months of a given fiscal year and who were reincarcerated within the thirty-six months after being released from a facility compared to all offenders who were released from that facility within the previous forty-eight months of that fiscal year.
41-1692. Performance metrics
1. A reduction of the return to prison rate of eligible offenders compared to the baseline return to prison rate.
2. An increase in the job placement rate of eligible offenders compared to the baseline job placement rate.
41-1693. Base achievement contract; base payment; performance incentive payment
A. A contract to provide correctional services shall define the base achievement contract amount and shall consist of a base payment of NINETY percent of the total value of the contract and a performance incentive payment of ten percent of the total value of the contract. all of the following apply to the performance incentive payment:
1. Each performance metric listed in section 41-1692 CONSTITUTEs a percentage of the performance incentive payment of the base achievement contract as follows:
(a) A reduction of the return to prison rate of eligible offenders, compared to the baseline return to prison rate, constitutes sixty percent of the performance incentive payment.
(b) An increase in the job placement rate of eligible offenders, compared to the baseline job placement rate, constitutes forty percent of the performance incentive payment.
2. The PERFORMANCE incentive payment of the base achievement contract shall be paid, in proportion to the percentages prescribed in paragraph 1 of this subsection, after the achievement of each performance metric as follows:
(a) A reduction of the return to prison rate of eligible offenders, compared to the baseline return to prison rate, of five percent.
(b) An increase in the job placement rate of eligible offenders, compared to the baseline job placement rate, of five percent.
3. For each percentage point improvement per metric that exceeds the base achievement rate, the bonus payment shall equal one percent of that metric's value of the base achievement contract's performance incentive payment, except that the sum of bonus payments per year may not exceed twenty percent of the base achievement contract.
4. Until the fourth fiscal year after the effective date of this section, a contractor is assumed to have met the base achievement rate. Beginning in the fourth fiscal year after the effective date of this section, for each percentage point improvement of the RETURN to prison metric the bonus payment shall equal two percent of that metric's value of the base achievement contract's performance incentive payment.
5. For each housing placement failure, A 0.1 percent penalty shall be deducted from the performance incentive payment.
B. NOTWITHSTANDING subsection a of this section, for the first two years of the base achievement contract, the base payment shall consist of one hundred percent of the total value of the contract.
41-1694. Reporting requirements
A. Within TWELVE months after the date a contractor assumes full control of a facility and each year thereafter, the contractor shall submit a report to the governor, The president of the senate, the speaker of the house of representatives and the director of the department on the performance metrics prescribed in section 41-1692 of each facility under the contractor's management. The report shall include:
1. The types of programming offered.
2. The participation and completion rates of each program.
3. The effectiveness of each program.
4. The average idle time per offender.
5. The average staff to offender ratio.
6. The rates of all performance metrics.
7. The length of stay at each facility per housed offender.
8. Any incidents of violence in the facility.
B. The contractor shall provide a copy of the report prescribed by subsection A of this section to the secretary of state and make the report available to the public.
C. On or before December 31, 2025 and each year thereafter, the director of the department shall submit a report to the governor, the president of the senate and the speaker of the house of representatives on the performance METRICS prescribed in section 41-1692 of each facility under the department's management. The report shall include:
1. The types of programs offered.
2. The participation rates of each program.
3. The effectiveness of each program.
4. The average idle time per offender.
5. The average staff to offender ratio.
6. The rates of all performance metrics.
7. The length of stay at each facility per housed offender.
8. Any incidents of violence in each facility.
D. The department shall provide a copy of the report prescribed by subsection C of this section to the secretary of state and make the report available to the public.
41-1695. Baseline rates; reports
A. Not later than the end of each fiscal year, the arizona criminal justice commission, with the assistance of the department and any other RELEVANT AGENCIES, shall submit a report to the governor, the president of the senate, the speaker of the house of representatives and the DIRECTOR of the department that defines the baseline rates prescribed by this article and provide a copy of this report to the secretary of state.
B. The arizona criminal justice commission shall DETERMINE any EMPLOYMENT DATA that is NECESSARY FOR THE CALCULATIONS prescribed by this article FOR THOSE EMPLOYED IN THIS STATE BY REFERENCE TO EACH INDIVIDUAL'S UNEMPLOYMENT INSURANCE WAGE RECORDS that are MAINTAINED BY THe industrial commission of arizona.
C. The arizona criminal justice COMMISSION and the department may execute data sharing agreements with agencies in other states or territories or with federal agencies to assist the arizona criminal justice commission and the department in effectuating the purposes of this article by determining any employment data necessary for the calculations prescribed by this article.
Sec. 4. Short title
This act may be cited as the "Private Prison Performance Act."
