BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 2 3 5 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 (More) AB 2357 (Galgiani) Page 2 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 (More) AB 2357 (Galgiani) Page 3 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 (More) AB 2357 (Galgiani) Page 4 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. (More) AB 2357 (Galgiani) Page 5 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. (More) 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 (More) AB 2357 (Galgiani) Page 7 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. ***************