HOUSE BILL 583
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Ray Begaye
AN ACT
RELATING TO CORRECTIONS; REINFORCING THE RIGHTS OF NATIVE AMERICAN RESIDENTS AND INMATES TO TRADITIONAL RELIGIOUS PRACTICES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 32A-2-12 NMSA 1978 (being Laws 1993, Chapter 77, Section 41, as amended) is amended to read:
"32A-2-12. PLACEMENT OR DETENTION.--
A. A child alleged to be a delinquent child may be placed or detained, pending a court hearing, in any of the following places, as long as the contract for the placement or detention includes a clause protecting and respecting an Indian child's religious beliefs:
(1) a licensed foster home or a home otherwise authorized under the law to provide foster or group care;
(2) a facility operated by a licensed child welfare services agency;
(3) a shelter-care facility provided for in the Children's Shelter Care Act or a detention facility certified by the department for children alleged to be delinquent children;
(4) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and [which] that meets the standards for detention facilities pursuant to the Children's Code and federal law; or
(5) the child's home or place of residence, under conditions and restrictions approved by the court.
B. A child alleged to be a youthful offender may be detained, pending a court hearing, in any of the following places:
(1) a detention facility, licensed by the department, for children alleged to be delinquent children; or
(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law.
C. A child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be transferred and detained, pending a court hearing, in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of [his] the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.
D. A child who has previously been incarcerated as an adult or a person older than eighteen years of age shall not be detained in a juvenile detention facility or a facility for the long-term care and rehabilitation of delinquent children, but may be detained in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of [his] the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.
E. A child alleged to be a serious youthful offender may be detained pending a court hearing in any of the following places, prior to arraignment in metropolitan, magistrate or district court:
(1) a detention facility, licensed by the department, for children alleged to be delinquent children;
(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court [which] and that meets the standards for detention facilities pursuant to the Children's Code and federal law; or
(3) a county jail, if a facility in Paragraph (1) or (2) of this subsection is not appropriate. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of [his] the child's age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult."
Section 2. Section 32A-18-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 227) is amended to read:
"32A-18-4. CULTURAL AWARENESS.--
A. An Indian child placed in foster care, pre-adoptive placement, adoptive placement or a secure facility shall be allowed to maintain [his] the child's cultural ties and religious practices and shall be permitted to participate in activities that strengthen cultural awareness.
B. An Indian child placed in a secure facility shall be permitted to participate in activities that strengthen cultural awareness and that protect and respect the child's religious beliefs. A representative of the child's culture shall be allowed access to the secure facility to provide activities that strengthen cultural awareness; provided that the activities are restricted to the premises of the secure facility."
Section 3. Section 33-10-3 NMSA 1978 (being Laws 1993, Chapter 108, Section 1) is amended to read:
"33-10-3. DEFINITIONS.--As used in the Native American Counseling Act:
A. "department" means the corrections department or the secretary of corrections;
B. "children, youth and families department" includes the secretary of children, youth and families;
[A.] C. "Native American" means any person who is descended from or is a member of an American Indian tribe, pueblo or band or is a native Hawaiian or Alaskan native; [and]
[B.] D. "Native American religion" means any religion or religious belief that is practiced by a Native American, the origin and interpretation of which is from a traditional Native American culture or community, and includes the Native American church; and
E. "state corrections facility" includes a privately operated corrections facility under contract with the department."
Section 4. Section 33-10-4 NMSA 1978 (being Laws 1993, Chapter 108, Section 2) is amended to read:
"33-10-4. FREEDOM OF WORSHIP.--
A. Native American religions shall be afforded by the corrections department the same standing and respect as Judeo-Christian religions. A valid contract with the department or the children, youth and families department for care, treatment and housing of Native American inmates or residents shall contain a clause protecting and respecting Native American religions and religious practices. The practice of Native American religion shall be permitted at each state corrections facility, including women's and juvenile corrections facilities, to the extent that it does not threaten the reasonable security of the corrections facility.
B. Upon the request of any Native American inmate or group of Native American inmates, a state corrections facility shall permit access on a regular basis, for at least six consecutive hours per week, to:
(1) Native American spiritual advisers;
(2) items and materials used in religious ceremonies and provided by the inmate or a spiritual [advisor] adviser, including cedar, corn husks, corn pollen, eagle and other feathers, sage, sweet grass, tobacco, willow, drums, gourds, lava rock, medicine bundles, bags or pouches, pipes, staffs and other traditional items and materials, except that the sacramental use of peyote by an inmate while incarcerated is prohibited even though such use is in conformance with the religious and spiritual beliefs and policies of the Native American church; and
(3) a sweat lodge on the grounds of the corrections facility.
C. A secure place at the site of worship in which to store the items and materials used to conduct the religious ceremonies shall be provided. Any Native American inmate or resident may possess items and materials listed in Paragraph (2) of Subsection B of this section and used in religious ceremonies, [as defined in Section 2 Subsection B of this Act] as long as this possession does not threaten the reasonable security of the corrections facility.
D. Native American spiritual advisers shall be afforded by the administration of a state corrections facility the same stature, respect and inmate contact as is afforded the clergy of any Judeo-Christian religion.
E. No Native American inmate shall be required to cut his hair if it conflicts with his traditional Native American religious beliefs."
Section 5. Section 33-15-3 NMSA 1978 (being Laws 2001, Chapter 169, Section 3) is amended to read:
"33-15-3. INCARCERATION OF OUT-OF-STATE INMATES IN PRIVATELY OPERATED CORRECTIONAL FACILITIES--MINIMUM STANDARDS--SECRETARY'S AUTHORITY TO ADOPT RULES.--
A. A privately operated correctional facility shall have statutory authority, other than this section, in order to operate or house inmates. In addition to satisfying requirements set forth in a statute other than this section, a privately operated correctional facility shall meet the following minimum standards before housing ten or more out-of-state inmates:
(1) all correctional officers and other persons, employed or engaged by a privately operated correctional facility, whose primary function is to provide security shall, before being assigned to provide the security functions, successfully complete a screening, background check and training course approved by the secretary. The secretary may offer to provide services to the privately operated correctional facility, including qualifying screening, background checks and a training program at the corrections academy at a reasonable cost;
(2) a privately operated correctional facility shall provide immediate oral notice, followed by a written report, to the secretaries of public safety and corrections, the local county sheriff and the chief of police of the municipality in which the facility is located, or the chief of police of the nearest municipality, or their designees, whenever any of the following events occur at the privately operated correctional facility:
(a) discharge of a firearm other than for training purposes;
(b) discharge of a chemical agent, gas or munitions to control the behavior of two or more inmates;
(c) a hostage situation;
(d) the death of an inmate, staff member, visitor or other person;
(e) a disturbance involving five or more inmates;
(f) an escape or attempted escape; or
(g) the commission of a felony offense;
(3) a privately operated correctional facility shall obtain and maintain current accreditation by the American correctional association regarding standards for prisons or standards for jails. As to any new privately operated correctional facility, the secretary may allow the facility a period of two years from the date the facility becomes operational to obtain accreditation or may require the facility to apply for and receive provisional accreditation;
(4) a privately operated correctional facility shall prepare an emergency response plan deemed satisfactory by the secretary. A copy of the emergency response plan shall be provided to the secretaries of public safety and corrections, the local county sheriff and the chief of police of the municipality in which the facility is located, or the chief of police of the nearest municipality, or their designees;
(5) a privately operated correctional facility shall ensure that an out-of-state inmate released from the privately operated correctional facility is released to his state of origin; [and]
(6) a privately operated correctional facility shall include a clause expressly protecting and respecting the Native American religion and religious practices of Native American inmates as required by the Native American Counseling Act; and
[(6)] (7) the owner or operator of a privately operated correctional facility shall enter into a written contract with the entity that proposes to house ten or more out-of-state inmates in the facility, and the contract shall contain provisions that require compliance with the minimum standards set forth in this subsection.
B. The secretary shall review all contracts and proposed contracts between the owner or operator of a privately operated correctional facility and the entity that proposes to house ten or more out-of-state inmates in the facility. The secretary shall prepare and submit to the county a written report summarizing [his] the secretary's review of each contract.
C. The secretary shall inspect and monitor a privately operated correctional facility that houses or proposes to house ten or more out-of-state inmates to ensure compliance with the minimum standards set forth in this section and to ensure compliance with standards and rules adopted by the secretary pursuant to this section. The secretary shall be provided with the classification records and other relevant records pertaining to the out-of-state inmates who are proposed to be incarcerated at the privately operated correctional facility. The secretary shall have subpoena authority as to all present and former employees and other personnel of the privately operated correctional facility, as well as to all records pertaining to the facility, for the purposes of inspecting and monitoring the facility. Upon completion of an inspection, the secretary shall submit a report with findings and recommendations to the privately operated correctional facility, the board of county commissioners for the county where the facility is located, the county sheriff of the county where the facility is located and the appropriate legislative [corrections oversight] committee. The secretary shall allow the facility a reasonable period of time to address any deficiencies and recommendations set forth in the report. The secretary may conduct additional inspections to determine compliance with minimum standards, rules and any recommendations. If a privately operated correctional facility that houses or proposes to house out-of-state inmates fails to comply with the standards and rules authorized pursuant to this section, the secretary shall notify the county of the deficiencies and recommend corrective action."
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