Attorney General Says No To Privately Operated Jails

Courthouse Journal
Washington State Association of Counties & Washington Association of County Officials
December 22, 2000, Number 34

Any county [or city] that is considering contracting with a private company to operate its jail will want to check out a recent state attorney general opinion (AGO 2000 No. 8) that significantly restricts such business deals.

Counties that currently hold contracts for city jail services also will want to track this issue. The city of Longview is appealing the opinion, which, if reversed, would allow the city to sever its existing jail contract with Cowlitz County in favor of a jail services contract with a private entity.

In summary, the AG opinion states the following conclusions in response to questions about code city authority raised by state Sen. Sid Snyder (D-Long Beach):

1.) Cities and counties are authorized to contract with a non-governmental entity for the construction of a jail.

2.) Cities and counties are not authorized to lease a jail from a non-governmental entity.

3.) Cities and counties are not authorized to contract with a non-governmental entity for such entity to provide jail-related services involving overall management of a jail or performance of other correctional or law enforcement functions.

4.) Cities and counties are authorized to contract with a non-governmental entity for such entity to provide jail-related services that do not involve overall management or performance of correctional or law enforcement functions. For example, private companies can provide services such as food and facilities maintenance but they can't manage a jail or supply guards.

While the formal opinion responds to a question specifically related to code cities, the controlling statute applies to counties as well as cities, thus the AG opinion also arguably applies to counties, explained Assistant Attorney General Robert J. Fallis, author of the opinion. However, Fallis cautioned that other statutes or the state Constitution could bear on the specific question of a county's authority to contract for private jail services. That specific question has not been asked of the AG, and Fallis has not researched it. A formal AG opinion on the specific county question may be requested by a state legislator or a county prosecutor.

Fallis' analysis focuses on the City and County Jails Act codified at RCW 70.48, which specifically defined jail to mean "any holding, detention or correctional facility as defined in this section." In turn, "holding facility," "detention facility," and "correctional facility," all are defined as facilities "operated by a governing unit," and "governing unit" is defined to mean "the city and/or county or any combination of cities and/or counties responsible for the operation, supervision, and maintenance of a jail."

Notably, the opinion distinguishes between the City and County Jails Act and a 1983 bill related to drunk driving and sentencing reforms, which expressly authorized cities and counties to establish special minimum security facilities that may "be operated by a non-correctional agency or by non-correctional personnel by contract with the governing unit."