BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 2357 (Galgiani)                                         7
          As Amended May 25, 2012 
          Hearing date:  June 12, 2012
          Penal Code
          SM:mc

                         TEMPORARY REMOVAL OF STATE PRISONERS  

                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: Unknown

          Opposition:None known

          Assembly Floor Vote:  Ayes  76 - Noes  0


                                         KEY ISSUE
           
          SHOULD IT BE SPECIFIED THAT ONE OF THE REASONS FOR WHICH THE 
          SECRETARY OF THE DEPARTMENT OF CORRECTIONS AND REHABILITATION COULD 
          ORDER A STATE PRISONER TEMPORARILY REMOVED FROM A STATE PRISON IS TO 
          PARTICIPATE IN OR ASSIST WITH THE GATHERING OF EVIDENCE RELATING TO 
          CRIMES? 



                                       PURPOSE





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                                                         AB 2357 (Galgiani)
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          The purpose of this bill is to specify that one of the reasons 
          for which the Secretary of the Department of Corrections and 
          Rehabilitation (CDCR) could order a state prisoner temporarily 
          removed from a state prison is to participate in or assist with 
          the gathering of evidence relating to crimes.  

           Current law  provides that the Director of Corrections may 
          authorize the temporary removal from prison or any other 
          institution for the detention of adults under the jurisdiction 
          of the Department of Corrections of any inmate, including 
          removal for the purpose of attending college classes.  The 
          Director may require that the temporary removal be under 
          custody.  Unless the inmate is removed for medical treatment, 
          the removal shall not be for a period of longer than three days. 
           The Director may require the inmate to reimburse the state, in 
          whole or in part, for expenses incurred by the state in 
          connection with such temporary removal other than for medical 
          treatment.  (Penal Code § 2690.)

           Current law  states that no person imprisoned for a felony sex 
          offense, as specified, shall be removed or released from the 
          detention facility where he or she is confined for the purpose 
          of attending college classes in any city or county nor shall the 
          person be placed in a community correctional center.  No person 
          under the jurisdiction of the adult court and confined under the 
          jurisdiction of the Department of the Youth Authority for 
          conviction of a felony sex offense, as specified, shall be 
          removed or released from the place of confinement for attendance 
          at any educational institution in any city or county.  (Penal 
          Code § 2961.)

           Current law  states that the Director of Corrections may 
          prescribe and amend rules and regulations for the administration 
          of the prisons and for the administration of parole of persons 
          sentenced to a determinate sentence.  (Penal Code § 5058.)

           This bill  would specify that one of the purposes for which the 
          Secretary of the Department of Corrections and Rehabilitation 
          could order a state prisoner temporarily removed from a state 




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          prison is to participate in or assist with the gathering of 
          evidence relating to crimes.  

           This bill  would specify that the inmate would not be charged the 
          cost of a temporary removal from prison for this purpose.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 




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          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
           This bill  does not aggravate the prison overcrowding crisis 
          described above under ROCA.




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                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               In January of this year, Assemblymember Galgiani 
               notified the California Department of Corrections and 
               Rehabilitation (CDCR) Administration that death row 
               inmate Wesley Shermantine was revealing new 
               information which might lead to the recovery of murder 
               victims in San Joaquin and Calaveras Counties.  
               Assemblymember Galgiani informed CDCR Administration 
               that she had been notified that the FBI Evidence 
               Response Team was prepared to forensically attempt to 
               recover victims, and she asked CDCR Administration to 
               initiate contact between federal and local law 
               enforcement as necessary to begin the recovery effort.
























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               At the time, there was a lack of clarity as to whether 
               the CDCR had statutory authority to initiate the 
               recovery effort by permitting the temporary removal 
               from prison of the inmate to identify possible burial 
               sites which then would be searched and excavated by 
               the FBI Evidence Response Team.  

               Since that time, information provided has allowed for 
               the recovery of Chevy Wheeler who went missing in 
               1985; Cynthia Vanderheiden who went missing in 1998; 
               16 year old Joanne Hobson who went missing in 1984; 
               and 18 year old Kimberly Billy who went missing in 
               1984.
                 
               Local law enforcement officials are requesting that 
               the inmate be transported by CDCR officials upon 
               request, at future dates.  In a highly sensitive and 
               complex case such as this, the Secretary of the 
               Department of Corrections and Rehabilitation should 
               have the authority to act. 

               Assembly Bill 2357 makes it explicitly clear that CDCR 
               has the statutory authority to temporarily remove an 
               inmate for purposes of assisting in a search and 
               recovery effort and participating in the gathering of 
               evidence relating to crimes.

               The Shermantine situation has raised questions about 
               what law enforcement agency has the legal authority to 
               initiate or even participate in the removal of an 
               inmate from prison to aid in an investigation, in this 
               case the search for the remains of victims.  This 
               clearly calls for a legislative action to clarify the 
               issue for all of the agencies involved.  
                         
               My legislation, AB 2357, will explicitly give the 
               Department of Corrections and Rehabilitation broad 
               authority to initiate a recovery effort.  I want to be 
               certain beyond a doubt that any future efforts will 




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               not be hindered in any unforeseen way, and that the 
               grief suffered by victim's families will not be 
               prolonged.






          2.  Effect of This Bill  

          Under existing law the Secretary of CDCR may authorize 
          temporarily removing any inmate from prison, including removal 
          for the purpose of attending college classes, except as 
          specified.  The Secretary may require that the temporary removal 
          be under custody and, unless the inmate is removed for medical 
          treatment, the removal may not be for more than three days.  
          Except when the removal is for medical treatment, the Secretary 
          may require the inmate to reimburse the state, in whole or in 
          part, for expenses incurred by the state in connection with such 
          temporary removal.  (Penal Code § 2690.)  This bill would 
          specify that the Secretary could authorize the temporary removal 
          of a prisoner to participate in or assist with the gathering of 
          evidence relating to crimes and that the inmate would not be 
          charged for the costs of this removal.


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