What is the distinction between a facility that is under the operational control of the state’s executive branch via a contract, and therefore subject to the governor’s certification or assurance, and a facility with which the state contracts for beds, and is therefore subject to the requirements of standard 115.12 but not deemed to be under the governor’s operational control?
A facility operated by a private organization “on behalf of an agency” is generally controlled by the parent confining agency. Typically, such a facility has a dedicated (or primarily dedicated) inmate population in the legal custody of the parent agency. In addition, such facilities generally operate within the confines of the parent agency’s policies, procedures, and practices. Such facilities are usually owned by (or controlled by) the parent agency. The parent agency typically contracts with private correctional entities to operate the facilities for finite and/or renewable durations.
By contrast, a mere “contract for the confinement of inmates” between a public agency and a private (or another public) agency pursuant to standard 115.12 is generally an arrangement to confine inmates for a fixed or variable fee or on a per diem basis. This arrangement is typically considered a rental of bed space for holding inmates. Contracted facilities in this category will often rent bed space or confine inmates from multiple external public agencies. While the contract may impose a number of requirements or standards on the contracted agency, it is generally a much lower level of operational control than a facility “operated on behalf of” the contracting agency as described in the paragraph above.
It should be noted that, pursuant to standard 115.12, any new contract or contract renewal must include the contracted entity’s obligation to comply with PREA and to allow for appropriate contract monitoring.
See also related FAQs in the 115.12 and Contracting categories.