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AB-2083 Foreign Private Prison Commission.(2011-2012)

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AB2083:v98#DOCUMENT

Amended  IN  Assembly  April 10, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 2083


Introduced  by  Assembly Member Donnelly

February 23, 2012


An act to add Chapter 18 (commencing with Section 7450) to Title 7 of Part 3 of the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 2083, as amended, Donnelly. Foreign Private Prison Commission.
Existing law provides for the administration of the state correctional system by the Department of Corrections and Rehabilitation under the direction of the Secretary of the Department of Corrections and Rehabilitation. Existing law requires the department to prepare plans for, and construct facilities and renovations within its master plan for which funds have been appropriated by the Legislature.
This bill would establish the Foreign Private Prison Commission, which, in cooperation with the Department of Corrections and Rehabilitation, would be responsible for the operation and administration of private prison facilities that are located in Mexico to house foreign nationals who have been convicted in California of offenses committed in California a criminal offense that makes a foreign national subject to deportation under the federal Immigration and Nationality Act. The bill would require the commission to conduct a cost comparison of executed privatization contracts every 5 years, and if the commission determines that the private prison facility costs are lower than costs of this state to provide the same services, would require ½1/2 of the difference between the state’s costs and the private prison’s costs to be deposited into the Correctional Service Fund, which would be established by the bill. Moneys in the Correctional Service Fund would be available to the department for purposes of implementing the provisions of the bill upon appropriation by the Legislature.
The bill would become operative only if, before July 1, 2017, the United States enters into a treaty with Mexico to allow the incarceration of inmates outside of the United States in private prisons.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 18 (commencing with Section 7450) is added to Title 7 of Part 3 of the Penal Code, to read:
CHAPTER  18. Foreign Private Prison Commission

7450.
 (a) The Foreign Private Prison Commission is hereby established, consisting of __ five members, which shall include the Secretary of the Department of Corrections and Rehabilitation. The Governor shall appoint the remaining ____ four members within 60 days after the effective date of this part. Members shall serve ____ year four-year terms.
(b) Members of the commission are not eligible to receive compensation, but are eligible to receive reimbursement of expenses.
(c) The commission shall be responsible for the overall operations and administration of private prison facilities that are located in Mexico and that house foreign nationals who have been convicted in California of any a criminal offense in this state that makes the foreign national subject to deportation under the federal Immigration and Nationality Act pursuant to Section 1227(a)(2) of Title 18 of the United States Code.

7451.
 (a) The Department of Corrections and Rehabilitation, in cooperation with the Foreign Private Prison Commission, shall issue a request for proposals for the construction and operation of a private prison facility to be located in Mexico and to house foreign national prisoners who have been convicted in California of a criminal offense that makes the foreign national subject to deportation under the federal Immigration and Nationality Act pursuant to Section 1227(a)(2) of Title 18 of the United States Code.
(b) On publication, any request for proposals shall be provided to the Joint Legislative Budget Committee for its review.
(c) To be considered for an award of a contract, the proposer shall demonstrate that it has all of the following:
(1) The qualifications, operations, management experience, and experienced personnel necessary to carry out the terms of the contract.
(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.
(d) The proposer shall agree that this state may cancel the contract at any time after the first year of operation, without penalty to this state, on giving at least 90 days days’ written notice.
(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. 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 percent of change in the average consumer price index 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.
(f) Any price or cost adjustments to a contract different than those authorized in subdivision (e) may be made only if the Legislature specifically authorizes the adjustments and appropriates moneys for that purpose, if required.
(g) 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 subdivision “acceptable proposal” means a proposal that substantially meets all of the requirements or conditions set forth in this part and that meets all of the requirements in the request for proposals.
(h) A proposal shall not be accepted unless the proposal offers cost savings to this state. Cost savings shall be determined based upon the standard cost comparison model for privatization established by the foreign private prison commission Foreign Private Prison Commission.
(i) A proposal shall not be accepted unless the proposal offers a level and quality of services that are at least functionally equivalent to those that would be provided by this state.
(j) A contract to provide correctional services as described in this section may be for an initial period of not more than 10 years.
(k) The initial contract may include an option to renew for two subsequent renewal periods of not more than five years each.
(l) The performance of the contractor shall be compared to the performance of this state in operating similar facilities, as provided in this subdivision. The Foreign Private Prison Commission shall conduct a biennial comparison of the services provided by the private prison contractor for the purpose of comparing private versus public provision of services. The comparison of services shall be based on professional correctional standards incorporated into the contract and shall be used for the purpose of determining if the private prison contractor is providing at least the same quality of services as this state at a lower cost or if the contractor is providing services superior in quality to those provided by this state at essentially the same cost. In conducting the comparison of services, the commission shall consider:
(1) Security.
(2) Inmate management and control.
(3) Inmate programs and services.
(4) Facility safety and sanitation.
(5) Administration.
(6) Food service.
(7) Personnel practices and training.
(8) Inmate health services.
(9) Inmate discipline.
(10) Other matters relating to services as determined by the Foreign Private Prison Commission.
(m) The Foreign Private Prison Commission shall conduct a cost comparison of executed privatization contracts once every five years for each contract. If the commission determines that the private prison facility costs are lower than the costs of this state to provide the same services, one‑half of the difference between the state’s costs and the private prison’s costs shall be deposited in the state General Fund and the remaining one‑half of the moneys shall be deposited in the Correctional Service Fund established pursuant to Section 7452.
(n) The Foreign Private Prison Commission shall provide the most recent service comparison and cost comparison under subdivisions (l) and (m) to the Joint Legislative Budget Committee for its review.
(o) A contract for providing correctional services to foreign nationals in a Mexican private prison facility shall not be entered into unless the following requirements are met:
(1) The private prison 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 private prison 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 General Services.
(p) The sovereign immunity of this state does not apply to the private prison 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.
(q) A contract for correctional services shall not authorize, allow, or imply a delegation of authority or responsibility to a private 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.
(r) The contract shall require that all prisoners be fingerprinted daily.

7452.
 (a) The Correctional Service Fund is hereby established in the State Treasury, which shall consist of moneys deposited pursuant to subdivision (m) of Section 7451. Upon appropriation by the Legislature, moneys in the fund shall be available for expenditure by the department for purposes of implementing the provisions of this chapter.
(b) Moneys provided from the fund shall supplement, not supplant, existing moneys for the following:
(1) Vocational training.
(2) Rehabilitation.
(3) Parole services.

7453.
 (a) This chapter shall not become operative unless, before July 1, 2017, the United States agrees to amend the United States-Mexico Treaty on the Execution of Penal Sentencing, or adopts a new treaty with Mexico relating to penal sentencing, to allow for the incarceration of inmates outside of the United States in private prisons.
(b) The Attorney General shall notify, in writing, the Governor, the Secretary of the Department of Corrections and Rehabilitation, the Secretary of the Senate, and the Chief Clerk of the Assembly of the date on which the conditions are met.