GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	2 

HOUSE BILL 4*
Committee Substitute Favorable 2/23/95

Short Title:  Repeal Prison Cap.	(Public)

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Sponsors:

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Referred to:  Re-referred to Appropriations.

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January 26, 1995

A BILL TO BE ENTITLED
AN ACT TO REPEAL THE PRISON POPULATION CAP, TO RAISE THE LIMIT ON PRISON CAPACITY, TO AUTHORIZE THE PAROLE OF NONVIOLENT INMATES, TO AUTHORIZE CERTAIN CONTRACTS FOR THE HOUSING OF STATE PRISONERS IN LOCAL CONFINEMENT FACILITIES, TO ALLOW FOR THE CONTRACTING OF PRIVATE PRISONS, TO REMOVE THE LIMIT ON PRISONERS WHO MAY BE HOUSED IN NON-STATE OWNED FACILITIES, TO REMOVE THE SUNSET ON CONTRACTS WITH OUT-OF-STATE PUBLIC CORRECTIONAL FACILITIES, AND TO ALLOW THE DEPARTMENT TO USE AVAILABLE FUNDS TO PROVIDE ADDITIONAL PRISON BEDS AND EMPLOY NECESSARY STAFF.
The General Assembly of North Carolina enacts:
Section 1. G.S. 148-4.1(c1) reads as rewritten:
"(c1)	For purposes of this section only, 'prison capacity' means the number of prisoners housed in facilities located in North Carolina and owned or operated by the State of North Carolina, as set by the Governor. In setting the prison capacity for purposes of this section, the Governor shall consider the number of beds available and shall make a finding that the number set would not jeopardize the State's ability to perform its obligations under the law. In no event shall the number set by the Governor under this subsection exceed 27,500."
Sec. 2.  G.S. 148-4.1(g1) reads as rewritten:
"(g1)	Notwithstanding any other provision of law except for subsection (h) of this section, the Post-Release Supervision and Parole Commission may parole nonviolent inmates who would not otherwise be eligible for parole instead of paroling violent inmates who are eligible for parole. This subsection does not apply to sentences under Article 81B of Chapter 15A of the General Statutes."
Sec. 3.  Effective January 1, 1996, G.S. 148-4.1, as rewritten by Sections 1 and 2 of this act, reads as rewritten:
"§ 148-4.1.  Release of inmates.
(a)	Whenever the Secretary of Correction determines from data compiled by the Department of Correction that it is necessary to reduce the prison population to a more manageable level or to meet the State's obligations under law, he shall direct the Parole Commission to release on parole over a reasonable period of time a number of prisoners sufficient to that purpose. From the time the Secretary directs the Parole Commission until the prison population has been reduced to a more manageable level, the Secretary may not accept any inmates ordered transferred from local confinement facilities to the State prison system under G.S. 148-32.1(b). Further, the Secretary may return any inmate housed in the State prison system under an order entered pursuant to G.S. 148-32.1(b) to the local confinement facility from which the inmate was transferred.
(b)	Except as provided in subsection (c), only inmates who are otherwise eligible for parole pursuant to Article 85 of Chapter 15A or pursuant to Article 3B of this Chapter may be released under this section.
(c)	Persons eligible for parole under Article 85A of Chapter 15A shall be eligible for early parole under this section nine months prior to the discharge date otherwise applicable, and six months prior to the date of automatic 90-day parole authorized by G.S. 15A-1380.2.
		(d)	
						(h)	A person sentenced under Article 81B of Chapter 15A of the General Statutes shall not be released pursuant to this section."
Sec. 4.  Effective January 1, 1996, G.S. 148-32.1(b) reads as rewritten:
"(b)	In the event that the custodian of the local confinement facility certifies in writing to the clerk of the superior court in the county in which said local confinement facility is located that the local confinement facility is filled to capacity, or that the facility cannot reasonably accommodate any more prisoners due to segregation requirements for particular prisoners, or that the custodian anticipates, in light of local experiences, an influx of temporary prisoners at that time, or if the local confinement facility does not meet the minimum standards published pursuant to G.S. 153A-221, any judge of the district court in the district court district as defined in G.S. 7A-133 where the facility is located, or any superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or 7A-48 in a district or set of districts as defined in G.S. 7A-41.1 where the facility is located may order that the prisoner be transferred to any other qualified local confinement facility within that district or within another such district where space is available, including a satellite jail unit operated pursuant to G.S. 153A-230.3 if the prisoner is a non-violent misdemeanant, which local facility shall accept the transferred prisoner, if the prison population has exceeded a manageable level as provided for in G.S. 148-4.1(a). If no such local confinement facility is available, then any such judge may order the prisoner transferred to such camp or facility as the proper authorities of the Department of Correction shall designate, notwithstanding that the term of imprisonment of the prisoner is 90 days or less.  In no event, however, shall a prisoner whose term of imprisonment is less than 30 days be assigned or ordered transferred to any such camp or facility."
Sec. 5. G.S.  148-37 reads as rewritten:
"§ 148-37.  Additional facilities authorized; contractual arrangements.
(a)	Subject to the provisions of G.S. 143-341, the State Department of Correction may establish additional facilities for use by the Department, such facilities to be either of a permanent type of construction or of a temporary or movable type as the Department 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 Department 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.
(b)	The Secretary of Correction 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 Department of Correction.  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.  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 State Department of Correction.  Such payments are hereby appropriated to the State Department of Correction as a supplementary fund to compensate for the additional care and maintenance of such prisoners as are received under such contracts.
(c)	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 Correction 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 Department of Correction. 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.
(d)	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 Correction.  Custodial officials employed by an out-of-state correctional facility are agents of the Secretary of Correction and may use those procedures for use of force authorized by the Secretary of Correction 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.
	(f)	Any contracts entered into by the Department of Correction with public contractors prior to March 25, 1994, for the out-of-state housing of inmates are ratified.  The Department of Correction shall take such actions not inconsistent with the terms of the contracts so that without further approval by the General Assembly they are not effective for the confinement or care of State prisoners after June 30, 1995.
(g)	The Secretary of Correction may contract with private for-profit or nonprofit firms for the provision and operation of confinement facilities in the State to house State prisoners when to do so would most economically and effectively promote the purposes served by the Department of Correction. 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, and are subject to the approval of the Council of State and the Department of Administration. 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. 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 Correction 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 Correction.  Custodial officials employed by a private confinement facility are agents of the Secretary of Correction and may use those procedures for use of force authorized by the Secretary of Correction 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.
(h)	The Department of Correction shall make a written report no later than March 1 of every odd-numbered 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 Council of State, the Department of Administration, and the Joint Legislative Commission on Governmental Operations. In addition to the report, the Department of Correction shall provide information on contracts for the housing of State prisoners as requested by these groups."
Sec. 6.  Section 16(c) of Chapter 24 of the Session Laws of the 1994 Extra Session reads as rewritten:
"(c)	Subsections (a) and (b) of this section are effective upon ratification."
Sec. 7. The Department of Correction may use funds available to the Department to provide for additional prison beds when the prison population has exceeded population projections or when additional prison capacity is required. The Department may also use funds available to employ correctional officers and other necessary staff in temporary positions to staff leased confinement facilities.
Sec. 8.  When contracting with private for-profit or nonprofit firms for the housing of State prisoners, the Department of Correction shall give priority to contracts with private firms in the State when to do so would most efficiently house those prisoners.
Sec. 9.  Sections 3 and 4 of this act become effective January 1, 1996. The remainder of this act is effective upon ratification, but Section 7 of this act expires on June 30, 1997.