Representative Jefferson S. Burton proposes the following substitute bill:


1     
CORRECTIONAL FACILITY AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jefferson S. Burton

5     
Senate Sponsor: Derrin R. Owens

6     

7     LONG TITLE
8     General Description:
9          This bill enacts provisions related to communication devices in correctional facilities.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     makes it a crime to transport, provide, sell, or possess a communication device at a
14     correctional facility in violation of facility policy; and
15          ▸     makes technical and conforming changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          This bill provides a coordination clause.
20     Utah Code Sections Affected:
21     AMENDS:
22          76-8-311.3, as last amended by Laws of Utah 2023, Chapter 330
23     Utah Code Sections Affected by Coordination Clause:
24          76-8-311.3, as last amended by Laws of Utah 2023, Chapter 330
25          76-8-311.11, Utah Code Annotated 1953
26     

27     Be it enacted by the Legislature of the state of Utah:
28     The following section is affected by a coordination clause at the end of this bill.
29          Section 1. Section 76-8-311.3 is amended to read:
30          76-8-311.3. Items prohibited in correctional and mental health facilities --
31     Penalties.
32          (1) (a) As used in this section:
33          [(a)] "Communication device" means a device designed to receive or transmit an
34     image, text message, email, video, location information, or voice communication or another
35     device that can be used to communicate electronically.
36          (i) "Contraband" means [any] an item not specifically prohibited for possession by
37     offenders under this section or Title 58, Chapter 37, Utah Controlled Substances Act.
38          [(b)] (ii) "Controlled substance" means any substance defined as a controlled substance
39     under Title 58, Chapter 37, Utah Controlled Substances Act.
40          [(c)] (iii) "Correctional facility" means:
41          [(i)] (A) [any] a facility operated by or contracting with the Department of Corrections
42     to house [offenders] an offender in either a secure or nonsecure setting;
43          [(ii)] (B) [any] a facility operated by a municipality or a county to house or detain
44     [criminal offenders] an offender;
45          [(iii)] (C) [any] a juvenile detention facility; [and] or
46          [(iv)] (D) [any] a building or grounds appurtenant to [the] a facility or [lands] land
47     granted to the state, municipality, or county for use as a correctional facility.
48          [(d)] (iv) "Electronic cigarette product" means the same as that term is defined in
49     Section 76-10-101.
50          [(e)] (v) "Medicine" means [any] a prescription drug as defined in Title 58, Chapter
51     17b, Pharmacy Practice Act, but does not include [any] a controlled [substances] substance as
52     defined in Title 58, Chapter 37, Utah Controlled Substances Act.
53          [(f)] (vi) "Mental health facility" means the same as that term is defined in Section
54     26B-5-301.
55          [(g)] (vii) "Nicotine product" means the same as that term is defined in Section
56     76-10-101.
57          [(h)] (viii) "Offender" means [a person] an individual in custody at a correctional
58     facility.
59          [(i)] (ix) "Secure area" means the same as that term is defined in Section 76-8-311.1.
60          [(j)] (x) "Tobacco product" means the same as that term is defined in Section
61     76-10-101.
62          (2) (a) Notwithstanding Section 76-10-500, a correctional facility or mental health
63     facility may [provide by rule that no] prohibit a firearm, ammunition, a dangerous weapon, an
64     implement of escape, an explosive, a controlled substance, spirituous or fermented liquor,
65     medicine, or poison [in any quantity may be] from being:
66          [(a)] (i) transported to or [upon] within a correctional facility or mental health facility;
67          [(b)] (ii) sold or [given away at any] provided to an offender at a correctional facility or
68     mental health facility; or
69          [(c)] (iii) [given to or used by any offender] possessed by an offender or another
70     individual at a correctional facility or mental health facility[; or].
71          [(d) knowingly or intentionally possessed at a correctional or mental health facility.]
72          (b) A correctional facility may prohibit a communication device from being:
73          (i) transported to or within the correctional facility for the purpose of being sold or
74     provided to an offender in the correctional facility;
75          (ii) sold or provided to an offender in the correctional facility; or
76          (iii) possessed by an offender or another individual at the correctional facility.
77          (3) It is a defense to [any] a prosecution under this section if the accused in committing
78     the act made criminal by this section with respect to:
79          (a) a correctional facility operated by the Department of Corrections, acted in
80     conformity with departmental rule or policy;
81          (b) a correctional facility operated by a municipality, acted in conformity with the
82     policy of the municipality;
83          (c) a correctional facility operated by a county, acted in conformity with the policy of
84     the county; or
85          (d) a mental health facility, acted in conformity with the policy of the mental health
86     facility.
87          (4) (a) An individual who transports to or upon a correctional facility, or into a secure
88     area of a mental health facility, [any] a firearm, ammunition, a dangerous weapon, or an
89     implement of escape with intent to provide or sell it to [any] an offender, is guilty of a second
90     degree felony.
91          (b) An individual who provides or sells to [any] an offender at a correctional facility, or
92     [any] a detainee at a secure area of a mental health facility, [any] a firearm, ammunition, a
93     dangerous weapon, or an implement of escape is guilty of a second degree felony.
94          (c) An offender who possesses at a correctional facility, or a detainee who possesses at
95     a secure area of a mental health facility, [any] a firearm, ammunition, a dangerous weapon, or
96     an implement of escape is guilty of a second degree felony.
97          (d) An individual who, without the permission of the authority operating the
98     correctional facility or the secure area of a mental health facility, knowingly possesses at a
99     correctional facility or a secure area of a mental health facility [any] a firearm, ammunition, a
100     dangerous weapon, or an implement of escape is guilty of a third degree felony.
101          (e) An individual violates Section 76-10-306 who knowingly or intentionally
102     transports, possesses, distributes, or sells [any] an explosive in a correctional facility or mental
103     health facility.
104          (5) (a) An individual is guilty of a third degree felony who, without the permission of
105     the authority operating the correctional facility or secure area of a mental health facility,
106     knowingly transports [to or upon a correctional facility or into a secure area of a mental health
107     facility any]:
108          (i) a communication device to or within a correctional facility with the intent to
109     provide or sell the communication device to an offender in the correctional facility;
110          (ii) spirituous or fermented liquor to or within a correctional facility or a secure area of
111     a mental health facility;
112          [(ii)] (iii) medicine to or within a correctional facility or a secure area of a mental
113     health facility[,] whether or not lawfully prescribed for [the] an offender or detainee; or
114          [(iii)] (iv) poison [in any quantity] to or within a correctional facility or a secure area of
115     a mental health facility.
116          (b) An individual is guilty of a third degree felony who knowingly violates correctional
117     or mental health facility policy or rule by providing or selling [to any offender at a correctional
118     facility or detainee within a secure area of a mental health facility any]:
119          (i) a communication device to an offender at a correctional facility;
120          (ii) spirituous or fermented liquor to an offender at a correctional facility or a detainee
121     within a secure area of a mental health facility;
122          [(ii)] (iii) medicine[,] to an offender at a correctional facility or detainee within a
123     secure area of a mental facility whether or not the medicine is lawfully prescribed for the
124     offender; or
125          [(iii)] (iv) poison [in any quantity] to an offender at a correctional facility or a detainee
126     within a secure area of a mental health facility.
127          (c) An [inmate] offender is guilty of a third degree felony who, in violation of
128     correctional or mental health facility policy or rule, possesses [at a correctional facility or in a
129     secure area of a mental health facility any]:
130          (i) a communication device at a correctional facility;
131          (ii) spirituous or fermented liquor at a correctional facility or in a secure area of a
132     mental health facility;
133          [(ii)] (iii) medicine at a correctional facility or in a secure area of a mental health
134     facility[,] other than medicine provided by the facility's health care providers in compliance
135     with facility policy; or
136          [(iii)] (iv) poison [in any quantity] at a correctional facility or in a secure area of a
137     mental health facility.
138          (d) An individual is guilty of a class A misdemeanor who, with the intent to directly or
139     indirectly provide or sell [any] a tobacco product, electronic cigarette product, or nicotine
140     product to an offender, directly or indirectly:
141          (i) transports, delivers, or distributes any tobacco product, electronic cigarette product,
142     or nicotine product to an offender or on the grounds of any correctional facility;
143          (ii) solicits, requests, commands, coerces, encourages, or intentionally aids another
144     person to transport any tobacco product, electronic cigarette product, or nicotine product to an
145     offender or on any correctional facility, if the person is acting with the mental state required for
146     the commission of an offense; or
147          (iii) facilitates, arranges, or causes the transport of any tobacco product, electronic
148     cigarette product, or nicotine product in violation of this section to an offender or on the
149     grounds of any correctional facility.
150          (e) An individual, other than an offender, is guilty of a class A misdemeanor who,
151     without the permission of the authority operating the correctional or mental health facility,
152     [fails to declare or] knowingly possesses [at a correctional facility or in a secure area of a
153     mental health facility any]:
154          (i) subject to Subsection (7), a communication device at a correctional facility;
155          (ii) spirituous or fermented liquor at a correctional facility or in a secure area of a
156     mental health facility;
157          [(ii)] (iii) medicine at a correctional facility or in a secure area of a mental health
158     facility; or
159          [(iii)] (iv) poison [in any quantity] at a correctional facility or in a secure area of a
160     mental health facility.
161          (f) (i) Except as provided in Subsection (5)(f)(ii), an individual is guilty of a class B
162     misdemeanor who, without the permission of the authority operating the correctional facility,
163     knowingly engages in any activity that would facilitate the possession of any contraband by an
164     offender in a correctional facility.
165          (ii) The provisions of Subsection (5)(d) regarding any tobacco product, electronic
166     cigarette product, or nicotine product take precedence over this Subsection (5)(f).
167          (g) Exemptions may be granted for worship for Native American inmates pursuant to
168     Section 64-13-40.
169          (6) The possession, distribution, or use of a controlled substance at a correctional
170     facility or in a secure area of a mental health facility shall be prosecuted in accordance with
171     Title 58, Chapter 37, Utah Controlled Substances Act.
172          (7) (a) A correctional facility that prohibits an individual other than an offender from
173     possessing a communication device in the correctional facility under Subsection (5)(e)(i) shall
174     post a sign visible to an individual entering the correctional facility that provides the individual
175     with notice that possessing a communication device in the correctional facility is prohibited
176     and the individual may be prosecuted for possessing a communication device.
177          (b) A prosecuting attorney may not prosecute an individual under Subsection (5)(e)(i)
178     if the correctional facility fails to comply with Subsection (7)(a).
179          [(7)] (8) The department shall make rules under Title 63G, Chapter 3, Utah
180     Administrative Rulemaking Act, to establish guidelines for providing written notice to visitors
181     that providing any tobacco product, electronic cigarette product, or nicotine product to
182     offenders is a class A misdemeanor.
183          Section 2. Effective date.
184          This bill takes effect on May 1, 2024.
185          Section 3. Coordinating H.B. 26 with H.B. 15
186          If this H.B. 26, Correctional Facility Amendments, and H.B. 15, Criminal Code
187     Recodification and Cross References, both pass and become law, it is the intent of the
188     Legislature that the Office of Legislative Research and General Counsel prepare the Utah Code
189     database for publication by making the following changes:
190          (1) amending Section 76-8-311.3 to read:
191          "76-8-311.3 Establishment of prohibited item policy in a correctional or mental health
192     facility -- Reference to penalty provisions -- Exceptions -- Rulemaking.
193          (1) (a) As used in this section:
194          [(a) "Contraband" means any item not specifically prohibited for possession by
195     offenders under this section or Title 58, Chapter 37, Utah Controlled Substances Act.]
196          [(b)] (i) "Communication device" means a device designed to receive or transmit an
197     image, text message, email, video, location information, or voice communication, or another
198     device that can be used to communicate electronically.
199          (ii) "Controlled substance" means [any] a substance defined as a controlled substance
200     under Title 58, Chapter 37, Utah Controlled Substances Act.
201          [(c)] (iii) "Correctional facility" means:
202          [(i)] (A) [any] a facility operated by or contracting with the Department of Corrections
203     to house [offenders] an offender in either a secure or nonsecure setting;
204          [(ii)] (B) [any] a facility operated by a municipality or a county to house or detain
205     [criminal offenders] an offender;
206          [(iii)] (C) [any] a juvenile detention facility; [and] or
207          [(iv)] (D) [any] a building or grounds appurtenant to [the] a facility or [lands] land
208     granted to the state, municipality, or county for use as a correctional facility.
209          (iv) "Dangerous weapon" means the same as that term is defined in Section 76-10-501.
210          [(d)] (v) "Electronic cigarette product" means the same as that term is defined in
211     Section 76-10-101.
212          (vi) "Firearm" means the same as that term is defined in Section 76-10-501.
213          [(e)] (vii) "Medicine" means [any] a prescription drug as defined in Title 58, Chapter
214     17b, Pharmacy Practice Act, but does not include [any] a controlled [substances] substance as
215     defined in Title 58, Chapter 37, Utah Controlled Substances Act.
216          [(f)] (viii) "Mental health facility" means the same as that term is defined in Section
217     26B-5-301.
218          [(g)] (ix) "Nicotine product" means the same as that term is defined in Section
219     76-10-101.
220          [(h)] (x) "Offender" means [a person] an individual in custody at a correctional facility.
221          [(i)] (xi) "Secure area" means the same as that term is defined in Section 76-8-311.1.
222          [(j)] (xii) "Tobacco product" means the same as that term is defined in Section
223     76-10-101.
224          (b) Terms defined in Sections 76-1-101.5 and 76-8-101 apply to this section.
225          (2)(a) Notwithstanding Section 76-10-500, a correctional facility or mental health
226     facility may [provide by rule that no] prohibit a firearm, ammunition, a dangerous weapon, an
227     implement of escape, an explosive, a controlled substance, spirituous or fermented liquor,
228     medicine, or poison [in any quantity may be] from being:
229          [(a)] (i) transported to or [upon] within a correctional facility or mental health facility;
230          [(b)] (ii) sold or given away [at any] to an offender at a correctional facility or mental
231     health facility; or
232          [(c)] (iii) [given to or used by any offender] possessed by an offender or another
233     individual at a correctional facility or mental health facility[; or].
234          [(d) knowingly or intentionally possessed at a correctional or mental health facility.]
235          (b) A correctional facility may prohibit a communication device from being:
236          (i) transported to or within the correctional facility for the purpose of being sold to an
237     offender in the correctional facility;
238          (ii) sold or given away to an offender in the correctional facility; or
239          (iii) possessed by an offender or another individual at the correctional facility.
240          (3) It is a defense to [any] a prosecution [under] related to this section [if the accused
241     in] that the actor, in committing the act made criminal by this section with respect to:
242          (a) a correctional facility operated by the Department of Corrections, acted in
243     conformity with departmental rule or policy;
244          (b) a correctional facility operated by a municipality, acted in conformity with the
245     policy of the municipality;
246          (c) a correctional facility operated by a county, acted in conformity with the policy of
247     the county; or
248          (d) a mental health facility, acted in conformity with the policy of the mental health
249     facility.
250          [(4)(a) An individual who transports to or upon a correctional facility, or into a secure
251     area of a mental health facility, any firearm, ammunition, dangerous weapon, or implement of
252     escape with intent to provide or sell it to any offender, is guilty of a second degree felony.]
253          [(b) An individual who provides or sells to any offender at a correctional facility, or any
254     detainee at a secure area of a mental health facility, any firearm, ammunition, dangerous
255     weapon, or implement of escape is guilty of a second degree felony.]
256          [(c) An offender who possesses at a correctional facility, or a detainee who possesses at
257     a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, or
258     implement of escape is guilty of a second degree felony.]
259          [(d) An individual who, without the permission of the authority operating the
260     correctional facility or the secure area of a mental health facility, knowingly possesses at a
261     correctional facility or a secure area of a mental health facility any firearm, ammunition,
262     dangerous weapon, or implement of escape is guilty of a third degree felony.]
263          [(e) An individual violates Section 76-10-306 who knowingly or intentionally
264     transports, possesses, distributes, or sells any explosive in a correctional facility or mental
265     health facility.]
266          [(5)(a) An individual is guilty of a third degree felony who, without the permission of
267     the authority operating the correctional facility or secure area of a mental health facility,
268     knowingly transports to or upon a correctional facility or into a secure area of a mental health
269     facility any:]
270          [(i) spirituous or fermented liquor;]
271          [(ii) medicine, whether or not lawfully prescribed for the offender; or]
272          [(iii) poison in any quantity.]
273          [(b) An individual is guilty of a third degree felony who knowingly violates correctional
274     or mental health facility policy or rule by providing or selling to any offender at a correctional
275     facility or detainee within a secure area of a mental health facility any:]
276          [(i) spirituous or fermented liquor;]
277          [(ii) medicine, whether or not lawfully prescribed for the offender; or]
278          [(iii) poison in any quantity.]
279          [(c) An inmate is guilty of a third degree felony who, in violation of correctional or
280     mental health facility policy or rule, possesses at a correctional facility or in a secure area of a
281     mental health facility any:]
282          [(i) spirituous or fermented liquor;]
283          [(ii) medicine, other than medicine provided by the facility's health care providers in
284     compliance with facility policy; or]
285          [(iii) poison in any quantity.]
286          [(d) An individual is guilty of a class A misdemeanor who, with the intent to directly or
287     indirectly provide or sell any tobacco product, electronic cigarette product, or nicotine product
288     to an offender, directly or indirectly:]
289          [(i) transports, delivers, or distributes any tobacco product, electronic cigarette product,
290     or nicotine product to an offender or on the grounds of any correctional facility;]
291          [(ii) solicits, requests, commands, coerces, encourages, or intentionally aids another
292     person to transport any tobacco product, electronic cigarette product, or nicotine product to an
293     offender or on any correctional facility, if the person is acting with the mental state required for
294     the commission of an offense; or]
295          [(iii) facilitates, arranges, or causes the transport of any tobacco product, electronic
296     cigarette product, or nicotine product in violation of this section to an offender or on the
297     grounds of any correctional facility.]
298          [(e) An individual is guilty of a class A misdemeanor who, without the permission of
299     the authority operating the correctional or mental health facility, fails to declare or knowingly
300     possesses at a correctional facility or in a secure area of a mental health facility any:]
301          [(i) spirituous or fermented liquor;]
302          [(ii) medicine; or]
303          [(iii) poison in any quantity.]
304          [(f)(i)Except as provided in Subsection (5)(f)(ii), an individual is guilty of a class B
305     misdemeanor who, without the permission of the authority operating the correctional facility,
306     knowingly engages in any activity that would facilitate the possession of any contraband by an
307     offender in a correctional facility.]
308          [(ii)The provisions of Subsection (5)(d) regarding any tobacco product, electronic
309     cigarette product, or nicotine product take precedence over this Subsection
310     (5)(f).(g)Exemptions may be granted for worship for Native American inmates pursuant to
311     Section 64-13-40.]
312          [(6)The possession, distribution, or use of a controlled substance at a correctional
313     facility or in a secure area of a mental health facility shall be prosecuted in accordance with
314     Title 58, Chapter 37, Utah Controlled Substances Act.]
315          [(7)The department shall make rules under Title 63G, Chapter 3, Utah Administrative
316     Rulemaking Act, to establish guidelines for providing written notice to visitors that providing
317     any tobacco product, electronic cigarette product, or nicotine product to offenders is a class A
318     misdemeanor.]
319          (4)(a) Except as provided by Subsection (4)(b) or (4)(c), an actor may be charged under
320     Section 76-8-311.4, 76-8-311.6, 76-8-311.7, 76-8-311.8, 76-8-311.9, 76-8-311.10, or
321     76-8-311.11 for a violation of a policy or rule created under this section.
322          (b) An actor who knowingly or intentionally transports, possesses, distributes, or sells
323     an explosive in a correctional facility or a mental health facility may be punished under Section
324     76-10-306.
325          (c) The possession, distribution, or use of a controlled substance at a correctional
326     facility or in a secure area of a mental health facility shall be charged under Title 58, Chapter
327     37, Utah Controlled Substances Act."; and
328          (2) Section 76-8-311.11 be enacted to read:
329          "76-8-311.11. Prohibited communication device in a correctional facility.
330          (1)(a) As used in this section:
331          (i) "Communication device" means the same as that term is defined in Section
332     76-8-311.3.
333          (ii) "Correctional facility" means the same as that term is defined in Section 76-8-311.3.
334          (iii) "Offender" means the same as that term is defined in Section 76-8-311.3.
335          (b) Terms defined in Sections 76-1-101.5 and 76-8-101 apply to this section.
336          (2) An actor commits prohibited communication device in a correctional facility if the
337     actor, without the permission of the correctional facility:
338          (a) knowingly transports a communication device into the correctional facility with the
339     intent to provide or sell the communication device to an offender in the correctional facility;
340          (b) provides or sells a communication device to an offender in the correctional facility;
341          (c)(i) is an offender; and
342          (ii) possesses a communication device in the correctional facility; or
343          (d)(i) subject to Subsection (4), is an individual other than an offender; and
344          (ii) knowingly possesses a communication device at the correctional facility.
345          (3)(a) A violation of Subsection (2)(a), (b), or (c) is a third degree felony.
346          (b) A violation of Subsection (2)(d) is a class A misdemeanor.
347          (4)(a) A correctional facility that prohibits an individual other than an offender from
348     possessing a communication device in the correctional facility under Subsection (2)(d) shall
349     post a sign visible to an individual entering the correctional facility that provides the individual
350     with notice that possessing a communication device in the correctional facility is prohibited
351     and the individual may be prosecuted for possessing a communication device.
352          (b) A prosecuting attorney may not prosecute an individual under Subsection (2)(d) if
353     the correctional facility fails to comply with Subsection (4)(a)."