BILL ANALYSIS Ó AB 1270 Page 1 Date of Hearing: January 10, 2012 Chief Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1270 (Ammiano) - As Amended: January 4, 2012 SUMMARY : Requires the California Department of Corrections (CDCR) to permit media representatives to interview inmates personally in California's prison on a pre-arranged, as well as random, basis unless the warden determines the interview poses an immediate threat to public safety or the security of the institution. Specifically, this bill : 1)Requires the warden, once he or she has granted a media interview request, to provide notice to the victim or victim's family at least two days prior to the interview if the victim or victim's family has stated they wish to be notified in the event of interview requests. 2)Provides that during an interview, a news media representative may use materials necessary to conduct interviews, including, but not limited to, pens, pencils, papers, and audio and video recording devices. These items shall be subject to search for the purpose of protecting against an immediate and direct threat to the security of the institution. 3)States that a news media representative who desires to conduct a prearranged interview at an institution shall make the request within a reasonable time period prior to the requested interview in writing to the warden or through contact with the institutions public relations office. 4)Requires staff to notify an inmate of each interview request, further stating that no interview shall be permitted without the inmate's consent. 5)States that an inmate should not receive compensation or anything of value for interviews with the news media. 6)Requires the warden or the warden's designated public relations or custodial official to notify the news media AB 1270 Page 2 representative making the interview request whether the interview has been granted within 48 hours of the request. 7)Requires the warden or the warden's designated public relations or custodial official be given at least two business days prior to an interview to notify the victim, who has requested notification of an interview request, that the interview has been granted. 8)Allows the warden or the warden's designated public relations or custodial official to deny an interview with a particular prisoner if it is determined that the interview poses an immediate and direct threat to the security or the physical safety of a member of the public. The news media representative will receive specific explanations for the denial within a reasonable period of time. 9)Allows CDCR to establish a reasonable time, place, and manner restrictions for prison interviews, including limitations on the number of interviews per prisoner in a specified time period and limitations on the amount of audio, video, and film equipment entering the facility for the interview. CDCR also can establish arrangements for pool interviews if the requests to interview one individual are excessive. 10) States that no prisoner or parolee can have his or her visitation limited or revoked as a result of a visit from a news media representative. A prisoner or parolee may also not be punished, reclassified, disciplined, transferred to another prison against his or her wishes, or retaliated against for participating or communicating with a representative of the news media. 11)Prohibits interviews from being the subject of auditory monitoring. 12) Defines "representative of the news media" as a journalist who works for or is under contract to a newspaper, magazine, wire service, book publisher, or radio or television program; or who, through press passes issued by a governmental or police agency or through similar convincing means, can demonstrate that he or she is a bona fide journalist engaged in the gathering of information for distribution to the public. AB 1270 Page 3 EXISTING LAW : 1)Vests the Secretary of the CDCR with the supervision, management and control of state prisons. The Secretary is also responsible for the care, custody, treatment, training, discipline and employment of a person confined in those prisons. The Secretary may decide the rules and regulations for the administration of the prisons. (Penal Code Sections 5054 and 5058.) 2)Requires a person sentenced to imprisonment in a state prison may only be denied of civil rights reasonably related to legitimate penological interests. (Penal Code Section 2600.) 3)Allows an inmate in a California state prison to correspond confidentially with a member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband. (Penal Code Section 2601.) 4)Prohibits a prisoner from participating in a specific face-to-face interview with a media representative. ÝCDCR Regulations, Title 15, Section 3261.5(a)(2).] 5)Permits a media representative to engage in random face-to-face interviews of individuals involved in a specific activity or program or encountered while covering a facility activity or event, and shall be limited to the time, areas and segments of the facility population designated by the institution head. ÝCDCR Regulations, Title 15, Section 3261.5(a)(1).] 6)Prohibits use of cameras or recording equipment without prior approval of the institution head or designee. ÝCDCR Regulations, Title 15, Section 3261.5(b).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "This bill enables media representatives to request specific in-person inmate interviews and requires CDCR to respond to requests AB 1270 Page 4 within a 48 hour period. The department would still retain discretion over all media requests, including the ability to deny requests that pose any safety risks to the institution, staff, or a member of the public. Any responses denying a request must be accompanied with a written explanation for the request denial. Crime victims and their families would be notified of the approved interview at least two days prior to the date of the interview and inmates would be protected from any acts of restitution by CDCR for speaking with a media representative." 2)Background and History : In 1971, the CDCR adopted a regulation prohibiting media access to specifically named prisoners. This regulation was upheld by the United States Supreme Court in Pell v. Procunier (1974) 417 U.S. 817. The Court found that a prison inmate retains those first amendment rights that are not inconsistent with his or her status as a prisoner and with the legitimate penological objectives of the corrections system and the rights of the media under the First and Fourteenth Amendments are not infringed since the media can still visit prisons and talk to inmates at random. In 1975, the Legislature enacted Penal Code Section 2620 (Chapter 1175, Statutes of 1975) which provided that during any periods of confinement, state prisoners may only be deprived of rights "as is necessary in order to provide for the reasonable security of the institutions . . . and for the reasonable protection of the public." When this section was enacted, the CDCR again allowed media access to specifically named prison inmates. In Turner v. Safly (1987) 482 U.S. 78, the test for limiting inmates' rights was held to be whether the restriction "is reasonably related to legitimate penological interests." In 1994, Penal Code Section 2620 was amended (Chapter 555, Statutes of 1994) to generally adopt the Turner standard. As amended Penal Code Section 2620 stated, "A person sentenced to imprisonment in the state prison may during a period of confinement be deprived of such rights and only such rights as is related to legitimate penological interests." The adoption of the Turner standard in statute, as noted above, prompted the CDCR in 1996 to issue emergency regulations that deleted news media from the confidential correspondence authority and deleted authority for "specific person" media AB 1270 Page 5 interviews along with the procedures that had existed to facilitate such interviews (and added language that "inmates may not participate in specific-person face-to-face interviews"). 3)Pre-Arranged Interviews with Inmates : Current regulations prohibit representatives of the news media from prearranging an interview with a CDCR prisoner. With respect to the implementation of these regulations, a CDCR memorandum dated November 3, 2004, "Revisiting California Department of Corrections Media Policy", sets forth CDCR's policy regarding prearranged interviews: a) "Institutions are prohibited by CCR, Title 15, Section 3261.5 to arrange individual interviews between media and inmates; b) "If a media member wants to contact an inmate, they can do so by writing a letter and getting approval to be on the inmate's visiting list; c) "As a visitor, media are allowed to bring writing materials but are prohibited from bringing any electronic recording devices and cameras; and, d) "The media member can meet with a specific inmate during normal visiting hours and is allowed to bring writing material to take notes while interviewing an inmate." 4)Cameras and Electronic Recording Equipment : Current regulations: (a) restrict the use of video and audio recording equipment while within a CDCR facility generally; (b) require the prior approval of the institution head for random interviews; and, (c) may not be used for pre-arranged interviews during visiting hours. This bill requires CDCR to allow representatives of the news media to use materials such as pens, paper and electronic recording equipment during any interview with a prisoner, subject to search and reasonable limitations on time and amount of recording equipment entering the facility. It is not clear that the authority of the institution head to limit the amount of recording equipment allowed within the institution also vests an institution head with the authority AB 1270 Page 6 to limit the specific type of equipment or use of that equipment once permitted inside. This may lead to an institution head either granting an interview where the representative of the news media operates video and audio equipment or a denial of the interview altogether for purposes of protecting institutional security or a member of the public. 5)Prior Legislation : a) SB 304 (Romero), of the 2007-08 Legislative Session, was identical to this bill and would have allowed representatives of the news media to conduct prearranged interviews with specified prisoners incarcerated in the CDCR. SB 304 was vetoed. b) SB 1521 (Romero), of the 2005-06 Legislative Session, was identical to this bill and would have allowed representatives of the news media to conduct prearranged interviews with specified prisoners incarcerated in the CDCR. SB 1521 was vetoed. c) SB 239 (Romero), of the 2005-06 Legislative Session was identical to this bill and would have allowed representatives of the news media to conduct prearranged interviews with specified prisoners incarcerated in the CDCR. SB 239 was vetoed. d) SB 1164 (Romero), of the 2003-04 Legislative Session, would have allowed representatives of the news media to conduct prearranged interviews with specified prisoners incarcerated in the CDCR. SB 1164 was vetoed. e) AB 1440 (Migden), of the 1999-2000 Legislative Session, would have repealed regulations issued by the CDCR restricting media access to prisoners. AB 1440 was vetoed. f) AB 2101 (Migden), of the 1999-2000 Legislative Session, was identical to AB 1440. AB 2101 was vetoed. REGISTERED SUPPORT / OPPOSITION : Support American Civil Liberties Union AB 1270 Page 7 Books Not Bars California Attorneys for Criminal Justice California Correctional Peace Officers Association California Newspaper Publishers Association California Public Defenders Association Drug Policy Alliance Friends Committee on Legislation of California Legal Services for Prisoners with Children Opposition None Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744