North Carolina § 148-37 - Additional facilities authorized; contractual arrangements.

§ 148-37. Additional facilities authorized; contractual arrangements.

Subject to the provisions of G.S. 143-341, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety may establish additional facilities for use by the Division, such facilities to be either of a permanent type of construction or of a temporary or movable type as the Division may find most advantageous to the particular needs, to the end that the prisoners under its supervision may be so distributed throughout the State as to facilitate individualization of treatment designed to prepare them for lawful living in the community where they are most likely to reside after their release from prison. For this purpose, the Division may purchase or lease sites and suitable lands adjacent thereto and erect necessary buildings thereon, or purchase or lease existing facilities, all within the limits of allotments as approved by the Department of Administration. The Secretary of Public Safety may contract with the proper official of the United States or of any county or city of this State for the confinement of federal prisoners after they have been sentenced, county, or city prisoners in facilities of the State prison system or for the confinement of State prisoners in any county or any city facility located in North Carolina, or any facility of the United States Bureau of Prisons, when to do so would most economically and effectively promote the purposes served by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. Except as otherwise provided, any contract made under the authority of this subsection shall be for a period of not more than two years, and shall be renewable from time to time for a period not to exceed two years. Contracts made under the authority of this subsection for the confinement of State prisoners in local or district confinement facilities may be for a period of not more than 10 years and renewable from time to time for a period not to exceed 10 years, and shall be subject to the approval of the Council of State and the Department of Administration after consultation with the Joint Legislative Commission on Governmental Operations. Contracts for receiving federal, county and city prisoners shall provide for reimbursing the State in full for all costs involved. The financial provisions shall have the approval of the Department of Administration before the contract is executed. Payments received under such contracts shall be deposited in the State treasury for the use of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. Such payments are hereby appropriated to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety as a supplementary fund to compensate for the additional care and maintenance of such prisoners as are received under such contracts. Recodified as G.S. 148-37.2 by Session Laws 2001-84, s. 1, effective May 17, 2001. In addition to the authority contained in subsections (a) and (b) of this section, and in addition to the contracts ratified by subsection (f) of this section, the Secretary of Public Safety may enter into contracts with any public entity or any private nonprofit or for-profit firms for the confinement and care of State prisoners in any out-of-state correctional facility when to do so would most economically and effectively promote the purposes served by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. Contracts entered into under the authority of this subsection shall be for a period not to exceed two years and shall be renewable from time to time for a period not to exceed two years. Prisoners may be sent to out-of-state correctional facilities only when there are no available facilities in this State within the State prison system to appropriately house those prisoners. Any contract made under the authority of this subsection shall be approved by the Department of Administration before the contract is executed. Before expending more than the amount specifically appropriated by the General Assembly for the out-of-state housing of inmates, the Division shall obtain the approval of the Joint Legislative Commission on Governmental Operations and shall report such expenditures to the Chairs of the Senate and House Appropriations Committees, the Chairs of the Senate and House Appropriations Subcommittees on Justice and Public Safety, and the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety. Prisoners confined in out-of-state correctional facilities pursuant to subsection (c) of this section shall remain subject to the rules adopted for the conduct of persons committed to the State prison system. The rules regarding good time and gain time, discipline, classification, extension of the limits of confinement, transfers, housing arrangements, and eligibility for parole shall apply to inmates housed in those out-of-state correctional facilities. The operators of those out-of-state correctional facilities may promulgate any other rules as may be necessary for the operation of those facilities with the written approval of the Secretary of Public Safety. Custodial officials employed by an out-of-state correctional facility are agents of the Secretary of Public Safety and may use those procedures for use of force authorized by the Secretary of Public Safety not inconsistent with the laws of the State of situs of the facility to defend themselves, to enforce the observance of discipline in compliance with correctional facility rules, to secure the person of a prisoner, and to prevent escape. Prisoners confined to out-of-state correctional facilities may be required to perform reasonable work assignments within those facilities. Private firms under subsection (c) of this section shall employ inmate disciplinary and grievance policies of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. Repealed by Session Laws 1995, c. 324, s. 19.10. Any contracts entered into by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety with public contractors prior to March 25, 1994, for the out-of-state housing of inmates are ratified. The Secretary of Public Safety may contract with private for-profit or nonprofit firms for the provision and operation of four or more confinement facilities totaling up to 2,000 beds in the State to house State prisoners when to do so would most economically and effectively promote the purposes served by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. This 2,000-bed limitation shall not apply to the 500 beds in private substance abuse treatment centers authorized by the General Assembly prior to July 1, 1995. Whenever the Division of Adult Correction and Juvenile Justice of the Department of Public Safety determines that new prison facilities are required in addition to existing and planned facilities, the Division may contract for any remaining beds authorized by this section before constructing State-operated facilities. Private confinement facilities under this section shall be designed, built, and operated in accordance with applicable State laws, court orders, fire safety codes, and local regulations. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall make a written report no later than March 1 of every year, beginning in 1997, on the substance of all outstanding contracts for the housing of State prisoners entered into under the authority of this section. The report shall be submitted to the Joint Legislative Oversight Committee on Justice and Public Safety. Contracts entered under the authority of this subsection shall be for a period not to exceed 10 years, shall be renewable from time to time for a period not to exceed 10 years. The Secretary of Public Safety shall enter contracts under this subsection only if funds are appropriated for this purpose by the General Assembly. Contracts entered under the authority of this subsection may be subject to any requirements for the location of the confinement facilities set forth by the General Assembly in appropriating those funds. Once the Division has made a determination to contract for additional private prison beds, it shall issue a request for proposals within 30 days of the decision. The request for proposals shall require bids to be submitted within two months, and the Division shall award contracts at the earliest practicable date after the submission of bids. The Secretary of Public Safety, in consultation with the Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety and the Chairs of the House and Senate Appropriations Subcommittees on Justice and Public Safety, shall make recommendations to the State Purchasing Officer on the final award decision. The State Purchasing Officer shall make the final award decision, and the contract shall then be subject to the approval of the Council of State after consultation with the Joint Legislative Commission on Governmental Operations. Contracts made under the authority of this subsection may provide the State with an option to purchase the confinement facility or may provide for the purchase of the confinement facility by the State. Contracts made under the authority of this subsection shall state that plans and specifications for private confinement facilities shall be furnished to and reviewed by the Office of State Construction. The Office of State Construction shall inspect and review each project during construction to ensure that the project is suitable for habitation and to determine whether the project would be suitable for future acquisition by the State. All contracts for the housing of State prisoners in private confinement facilities shall require a minimum of ten million dollars ($10,000,000) of occurrence-based liability insurance and shall hold the State harmless and provide reimbursement for all liability arising out of actions caused by operations and employees of the private confinement facility. Prisoners housed in private confinement facilities pursuant to this subsection shall remain subject to the rules adopted for the conduct of persons committed to the State prison system. The Secretary of Public Safety may review and approve the design and construction of private confinement facilities before housing State prisoners in these facilities. The rules regarding good time, gain time, and earned credits, discipline, classification, extension of the limits of confinement, transfers, housing arrangements, and eligibility for parole shall apply to inmates housed in private confinement facilities pursuant to this subsection. The operators of private confinement facilities may adopt any other rules as may be necessary for the operation of those facilities with the written approval of the Secretary of Public Safety. Custodial officials employed by a private confinement facility are agents of the Secretary of Public Safety and may use those procedures for use of force authorized by the Secretary of Public Safety to defend themselves, to enforce the observance of discipline in compliance with confinement facility rules, to secure the person of a prisoner, and to prevent escape. Private firms under this subsection shall employ inmate disciplinary and grievance policies of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. History (1933, c. 172, s. 19; 1957, c. 349, s. 10; 1967, c. 996, s. 8; 1973, c. 1262, s. 10; 1975, c. 879, s. 46; 1977, 2nd Sess., c. 1147, s. 34; 1994, Ex. Sess., c. 24, s. 16(a), (b); 1995, c. 324, s. 19.10(a), (b); c. 507, s. 19; 1996, 2nd Ex. Sess., c. 18, s. 20.18; 1997-443, ss. 21.4(c)-(e); 1999-237, s. 18.20(a); 2001-84, s. 1; 2001-138, s. 2; 2011-145, s. 19.1(h), (i); 2011-291, ss. 2.56-2.58; 2012-83, s. 61; 2015-241, s. 16C.10(a); 2017-186, s. 2(aaaaaaaa).) Cross References. - As to prohibition on private prisons housing out-of-state inmates, see G.S. 148-37.1. Use of Closed Facilities. - Session Laws 2017-57, s. 16C.3, provides: "The Department of Public Safety may continue to contract with The Center for Community Transitions, Inc., a nonprofit corporation, for the purchase of prison beds for minimum security female inmates during the 2017-2019 fiscal biennium. The Center for Community Transitions, Inc., shall report by February 1 of each year to the chairs of the House of Representatives Appropriations Committee on Justice and Public Safety and the Senate Appropriations Committee on Justice and Public Safety on the annual cost per inmate and the average daily inmate population compared to bed capacity using the same methodology as that used by the Department of Public Safety." Editor's Note. - Session Laws 2001-84, s. 2, provided: "This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes." Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017."' Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Effect of Amendments. - Session Laws 2011-291, ss. 2.56 through 2.58, effective June 24, 2011, at the end of subsection (c), in the third paragraph of subsection (g), and in the last sentence of subsection (i), substituted "Joint Legislative Oversight Committee on Justice and Public Safety" for "Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee." Session Laws 2015-241, s. 16C.10(a), effective July 1, 2015, in subsection (i), substituted "every year" for "every odd-numbered year" in the first sentence, deleted "the Council of State, the Department of Administration, the Joint Legislative Commission on Governmental Operations, and" following "submitted to" in the second sentence, and deleted the former third sentence, which read: "In addition to the report, the Division of Adult Correction of the Department of Public Safety shall provide information on contracts for the housing of State prisoners as requested by these groups." Session Laws 2017-186, s. 2(aaaaaaaa), effective December 1, 2017, inserted "and Juvenile Justice" throughout the section. Opinions of Attorney General Public Bidding Requirements Not Applicable to Subsection (b1). - The public bidding requirements of Article 8, Chapter 143 , G.S. 143-128 et seq., are not applicable to the construction of the three close security correctional facilities authorized by G.S. 148-37(b1), as the statute clearly contemplates that such facilities will be constructed by the private sector using private funds. See opinion of Attorney General to Mr. Robert M. High, Deputy Treasurer, N. C. Department of State Treasurer, 2000 N.C. AG LEXIS 34 (4/17/2000). Purchase of Prison Facilities After Construction by Private Firm. - Subsection (b1) neither expressly nor by implication authorizes the State to establish a nonprofit corporation to sell tax-exempt certificates of participation in order to finance a purchase of prison facilities immediately upon completion of construction by a private firm. See opinion of Attorney General to Mr. Robert M. High, Deputy Treasurer, N. C. Department of State Treasurer, 2000 N.C. AG LEXIS 34 (4/17/2000).