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AGO 1988 No. 3 - February 05, 1988
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

STATE AGENCIES ‑- AUTHORITY TO CONTRACT WITH FEDERAL GOVERNMENT ‑- HOUSING OF PRISONERS 

The Washington Department of Corrections has authority to enter into an agreement whereby the Department will house federal prisoners in Washington state prisons, in return for monetary payments from the federal government. 

                                                              - - - - - - - - - - - - - 

                                                                 February 5, 1988

Honorable Phil Talmadge
State Senator, 34th District
1725 S.W. Roxbury, No. 5
Seattle, WA 98106

Cite as:  AGO 1988 No. 3                                                                                                                 

 Dear Sir:

             By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

             Does the State Department of Corrections have authority to enter into an agreement whereby the Department will house federal prisoners in state prisons in return for monetary payments from the federal government?

             We answer your question in the affirmative, as explained more fully in the analysis below.

                                                                      ANALYSIS

             The Washington State Department of Corrections is an agency created by statute, with functions and purposes assigned to it by the Legislature.  As such, it is subject to the familiar rule that a state agency has only such authority as is expressly granted or necessarily implied from express grants of authority.  Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 622 P.2d 826 (1980),adhered to and modified, 95 Wn.2d 962, 633 P.2d 1324 (1981);Northern Pac. Ry. Co. v. Denny, 155 Wash. 544, 285 P. 452 (1930).

              [[Orig. Op. Page 2] ]

             In this case, however, the Department of Corrections does have express legislative authority for contracts to house federal prisoners.  The State of Washington is a party to the Interstate Corrections Compact.  RCW 72.74. [Chapter 72.74 RCW].  RCW 72.74.020(3) provides as follows:

             (a) Each party state may make one or more contracts with any one or more of the other party states, or with the federal government, for the confinement of inmates on behalf of a sending state in institutions situated within receiving states.  Any such contract shall provide for:

             (i) Its duration;

             (ii) Payments to be made to the receiving state or to the federal government, by the sending state for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs or treatment not reasonably included as part of normal maintenance;

             (iii) Participation in programs of inmate employment, if any; the disposition or crediting of any payments received by inmates on account thereof; and the crediting of proceeds from or disposal of any products resulting therefrom;

             (iv) Delivery and retaking of inmates;

             (v) Such other matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of the sending and receiving states.

             (b) The terms and provisions of this compact shall be a part of any contract entered into by the authority of or pursuant thereto and nothing in any such contract shall be inconsistent therewith.

 Another portion of the same statute specifically defines the term "state" to include the United States of America.  RCW 72.74.020(2)(a).  The remainder of the Compact concerns the details of procedure to be worked out between the "sending state" (the state or federal agency placing its prisoners in another state) and the "receiving state" (the "host" for the prisoners).

              [[Orig. Op. Page 3] ]

             Since both the State of Washington and the federal government are parties to the Interstate Corrections Compact, the Department of Corrections has full authority (arguably even some positive responsibility) to assist another state or the federal government by housing prisoners under the terms of the Compact.

             While we are not familiar with all the details of the agreement recently executed by the Secretary of Corrections with the federal government, it is clear that this agreement was executed pursuant to the Compact and was intended to carry out its terms.  The Department of Corrections will be receiving payment from the federal government for housing federal prisoners, and thus receives full consideration for the services it provides to the federal agency.  In addition, by being a party to the Compact, the State gains the opportunity, should it appear necessary at some point in the future, to place its prisoners in federal prisons or the prisons of other signatory states.1/

             In light of the Department's express authority to enter into the contract, we suspect that the questions which have been raised by several parties about the contract relate more to policy concerns about the wisdom of the contract than to concerns about the Department's legal authority to enter into it.  Perhaps these concerns were reflected to some extent in your opinion request, in which you refer to "the needs of local governments for placement."  A similar concern was expressed in an earlier letter you had written on the same subject (to which we responded with an informal opinion).  These concerns (and similar ones expressed by others) apparently arise from the fact that several county and city jails are overcrowded.  One possible solution to this overcrowding might be to house jail inmates in state prisons, and there is concern that the state/federal agreement would effectively preclude this solution.

             This concern seems at least partially misplaced.  First, we understand that the agreement between the Department of Corrections and the federal government neither requires the Department to house any specific number of federal prisoners nor to accept any federal prisoners the Department chooses not to accept.  Thus the  [[Orig. Op. Page 4] ] Department would be free, to the extent state prison spaces were available to house jail inmates, to make sufficient room available for such a program by declining to accept any more federal prisoners or even by retransferring certain federal prisoners back to the custody of the federal government. 2/

             Secondly, although several county and city jails are overcrowded, there are legal restrictions on the use of the state's penal institutions to relieve the overcrowding.  For instance, persons convicted of misdemeanors, or persons who receive sentences explicitly mentioning "imprisonment in the county jail" or a similar phrase might be precluded from serving their time in a state penal institution.3/

              For instance, the Sentencing Reform Act of 1981 generally requires that all sentences of less than one year in duration be served in a county and not a state facility.  See RCW 9.94A.190.  As to the other major class of jail inmates ‑- persons being detained before trial on criminal charges ‑- there is another set of legal problems in housing such detainees in state penal institutions, problems which at a minimum would require careful segregation of such detainees from the rest of the state prison population, and certain other safeguards.

             To summarize, the Department of Corrections has express statutory authorization to enter into a contract to house federal prisoners in state penal institutions.  Neither the existence of this authority nor the terms of the contract recently entered into precludes the Department from also housing (to the extent it might be feasible) inmates of county or city jail facilities, although there are a number of legal or practical barriers to using state prisons to house jail inmates.  Finally, current state law does not require the Department of Corrections in using excess state prison space to assign a higher or lower priority to (1) overflow inmates from local jails in the state, (2) federal prisoners, or (3) prisoners from other states.

              [[Orig. Op. Page 5] ]

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

JAMES K. PHARRIS
Senior Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/The Secretary of Corrections also has rather broad authority to enter into agreements "for the administration of adult correctional programs" with the federal government or with other states.  RCW 72.09.050.  This statute might have provided sufficient authority for the contract in question even if chapter 72.74 RCW had not been enacted.

 2/We note in passing that the Department of Corrections has no current statutory obligation to give "priority" status to local jail inmates as opposed to federal prisoners, but the Secretary might well adopt such a priority system for sound policy reasons.

 3/Since the matter is beyond the scope of your question, we decline to express an opinion here as to the extent to which there might be statutory or constitutional barriers to serving a jail sentence in a state prison, but several difficult legal issues obviously would have to be addressed before that could be accomplished, if at all.

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