BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
2
6
SB 26 (Padilla)
As Amended: February 1, 2011
Hearing date: March 22, 2011
Penal Code
SM:mc
Wireless Communication Devices in State Prisons
HISTORY
Source: Author
Prior Legislation: SB 525 (Padilla) - 2010, vetoed
SB 434 (Benoit) - 2009, died on suspense in
Assembly Appropriations
SB 1730 (Padilla) - 2008, died on suspense in
Senate Appropriations
SB 1267 (Leslie) - 2006, died on suspense in Senate
Appropriations
SB 1831 (Margett) - 2006, died in Senate Public
Safety
Support: Association of Orange County Deputy Sheriffs;
California Correctional Supervisors Organization;
California Fraternal Order of Police; California Police
Chiefs Association; California State Sheriffs'
Association; Long Beach Police Officers Association;
Los Angeles County Professional Peace Officers
Association; Santa Ana Police Officers Association;
California District Attorneys Association; San
Bernardino County Sheriff's Department; CTIA-The
Wireless Association; Peace Officers Research
Association of California; California Peace Officers
Association; Crime Victims United of California
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Opposition:Friends Committee on Legislation (unless amended)
KEY ISSUES
WHEN ANY NONEMPLOYEE VISITING AN INMATE OR WARD UNDER THE
JURISDICTION OF THE DEPARTMENT OF CORRECTIONS AND REHABILITATION
(CDCR) IS FOUND TO BE IN POSSESSION OF A WIRELESS COMMUNICATION
DEVICE UPON BEING SEARCHED OR SUBJECTED TO A METAL DETECTOR,
SHOULD THAT DEVICE BE SUBJECT TO CONFISCATION?
(CONTINUED)
SHOULD NOTICE OF THESE PROVISIONS BE POSTED IN EACH AREA IN WHICH
VISITORS ARE SEARCHED PRIOR TO VISITING WITH AN INMATE OR WARD UNDER
THE JURISDICTION OF THE DEPARTMENT?
SHOULD ANY NONEMPLOYEE WHO POSSESSES WITH THE INTENT TO DELIVER, OR
DELIVERS, TO AN INMATE OR WARD UNDER THE JURISDICTION OF THE CDCR A
WIRELESS COMMUNICATION DEVICE, BE GUILTY OF A MISDEMEANOR,
PUNISHABLE BY A FINE NOT TO EXCEED $5,000?
SHOULD ANY NONEMPLOYEE WHO POSSESSES WITH THE INTENT TO DELIVER, OR
DELIVERS, TO AN INMATE OR WARD UNDER THE JURISDICTION OF THE CDCR,
ONE OR MORE WIRELESS COMMUNICATION DEVICES AND WAS PREVIOUSLY
CONVICTED OF THE SAME OFFENSE, OR ANY NONEMPLOYEE WHO POSSESSES WITH
THE INTENT TO DELIVER, OR DELIVERS, TO AN INMATE OR WARD UNDER THE
JURISDICTION OF THE CDCR, TWO OR MORE WIRELESS COMMUNICATION
DEVICES, BE GUILTY OF A MISDEMEANOR, PUNISHABLE BY SIX MONTHS IN
JAIL, AND A FINE NOT TO EXCEED $5,000 FOR EACH DEVICE?
SHOULD ANY EMPLOYEE OF CDCR WHO POSSESSES WITH THE INTENT TO
DELIVER, OR DELIVERS, TO AN INMATE OR WARD UNDER THE JURISDICTION OF
THE CDCR, ONE OR MORE WIRELESS COMMUNICATION DEVICES, BE GUILTY OF A
MISDEMEANOR, PUNISHABLE BY A FINE NOT TO EXCEED $5,000 FOR EACH
DEVICE?
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SHOULD ANY INMATE OR WARD WHO IS FOUND TO BE IN POSSESSION OF A
WIRELESS COMMUNICATION DEVICE BE SUBJECT TO TIME CREDIT DENIAL OR
LOSS OF UP TO 180 DAYS, AS SPECIFIED?
SHOULD CREDITS FORFEITED PURSUANT TO THIS BILL NOT BE ELIGIBLE FOR
RESTORATION?
SHOULD ANY INMATE OR WARD UNDER THE JURISDICTION OF THE CDCR WHO,
DURING THE COMMISSION OR ATTEMPTED COMMISSION OF A CRIME, USES A
WIRELESS COMMUNICATION DEVICE, SHALL, UPON CONVICTION OF THAT CRIME,
IN ADDITION AND CONSECUTIVE TO THE PUNISHMENT PRESCRIBED FOR THE
CRIME OF WHICH HE OR SHE HAS BEEN CONVICTED, BE PUNISHED BY
IMPRISONMENT IN THE STATE PRISON FOR TWO, THREE, OR FIVE YEARS?
PURPOSE
The purpose of this bill is to provide that (1) any nonemployee
visiting an inmate or ward under the jurisdiction of the
department is found to be in possession of a wireless
communication device upon being searched or subjected to a metal
detector, that device shall be subject to confiscation; (2)
notice of these provisions shall be posted in each area in which
visitors are searched prior to visiting with an inmate or ward
under the jurisdiction of the department; (3) any nonemployee
who possesses with the intent to deliver, or delivers, to an
inmate or ward under the jurisdiction of the department a
wireless communication device, is guilty of a misdemeanor,
punishable by a fine not to exceed $5,000; (4) any nonemployee
who possesses with the intent to deliver, or delivers, to an
inmate or ward under the jurisdiction of the department, one or
more wireless communication devices and was previously convicted
of the same offense, or any nonemployee who possesses with the
intent to deliver, or delivers, to an inmate or ward under the
jurisdiction of the department, two or more wireless
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communication devices, is guilty of a misdemeanor, punishable by
six months in jail, and a fine not to exceed $5,000 for each
device; (5) any employee who possesses with the intent to
deliver, or delivers, to an inmate or ward under the
jurisdiction of the department, one or more wireless
communication devices, is guilty of a misdemeanor, punishable by
a fine not to exceed $5,000 for each device; (6) any inmate or
ward who is found to be in possession of a wireless
communication device shall be subject to time credit denial or
loss of up to 180 days, as specified, with credits forfeited
pursuant to this section not be eligible for restoration; and
(7) any inmate or ward under the jurisdiction of the Department
of Corrections and Rehabilitation who, during the commission or
attempted commission of a crime, uses a wireless communication
device, shall, upon conviction of that crime, in addition and
consecutive to the punishment prescribed for the crime of which
he or she has been convicted, be punished by imprisonment in the
state prison for two, three, or five years.
Existing law provides the conditions under which inmates in
state prisons may make telephone calls. The Department of
Corrections and Rehabilitation (CDCR) is required to provide
inmate telephones for use by general population inmates.
Inmates may place collect telephone calls to persons outside the
facility at designated times and on designated telephones, as
set forth in local procedures. Limitations may be placed on the
frequency and length of such calls based on the inmate's
privilege group as specified, and to ensure equal access. (15
Cal. Code of Regs. § 3282(b).)
Existing law provides that inmates may possess only the personal
property, materials, supplies, items, commodities and
substances, up to the maximum amount, received or obtained from
authorized sources, as permitted in these regulations.
Possession of contraband as defined in Section 3000 may result
in disciplinary action and confiscation of the contraband. (15
Cal. Code of Regs. § 3006.)
Existing law defines "contraband" in a prison as "anything which
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is not permitted, in excess of the maximum quantity permitted,
or received or obtained from an unauthorized source." (15 Cal.
Code of Regs. § 3000.)
Existing law provides that, for every six months of full-time
performance in a credit qualifying program, as designated by
the director, a prisoner shall be awarded worktime credit
reductions from his or her term of confinement of six months.
(Penal Code § 2933 (a).)
Existing law states that worktime credit is a privilege, not a
right. Worktime credit must be earned and may be forfeited, as
specified. (Penal Code § 2933 (b).)
Existing law provides that, under regulations adopted by the
Department of Corrections and Rehabilitation, which shall
require a period of not more than one year free of disciplinary
infractions, worktime credit which has been previously
forfeited may be restored by the director. The regulations
shall provide for separate classifications of serious
disciplinary infractions as they relate to restoration of
credits, the time period required before forfeited credits or a
portion thereof may be restored, and the percentage of
forfeited credits that may be restored for these time periods.
(Penal Code § 2933 (b).)
Existing law provides, for credits forfeited for commission of
specified felonies, the Department of Corrections and
Rehabilitation may provide that up to 180 days of lost credit
shall not be restored and up to 90 days of credit shall not be
restored for a forfeiture resulting from conspiracy or attempts
to commit one of those acts. No credits may be restored if they
were forfeited for a serious disciplinary infraction in which
the victim died or was permanently disabled. (Penal Code § 2933
(c).)
Existing law provides that, upon application of the prisoner
and following completion of the required time period free of
disciplinary offenses, forfeited credits eligible for
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restoration under the regulations for disciplinary offenses
other than serious disciplinary infractions punishable by a
credit loss of more than 90 days shall be restored unless, at
a hearing, it is found that the prisoner refused to accept or
failed to perform in a credit qualifying assignment, or
extraordinary circumstances are present that require that
credits not be restored. "Extraordinary circumstances" shall
be defined in the regulations adopted by the director.
However, in any case in which worktime credit was forfeited
for a serious disciplinary infraction punishable by a credit
loss of more than 90 days, restoration of credit shall be at
the discretion of the director. (Penal Code § 2933 (c).)
Existing law provides that, notwithstanding any other law,
any person who is convicted of a serious felony, as defined,
shall accrue no more than 15% of worktime credit. (Penal
Code § 2933.1 (a).)
Existing law provides that up to 180 days of credit may be
denied or lost for a single act of misconduct, except for
specified violent felonies, which could be prosecuted as a
felony whether or not prosecution is undertaken. (Penal Code §
2932 (a)(2).)
Existing law provides that up to 90 days of credit may be denied
or lost for a single act of misconduct which could be prosecuted
as a misdemeanor, whether or not prosecution is undertaken.
(Penal Code § 2932 (a)(3).)
Existing law provides that up to 30 days of credit may be
denied or lost for a single act of misconduct defined by
regulation as a serious disciplinary offense by the
Department of Corrections and Rehabilitation. Any person
confined due to a change in custodial classification
following the commission of any serious disciplinary
infraction shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a
period not to exceed the number of days of credit which have
been lost for the act of misconduct or 180 days, whichever is
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less. (Penal Code § 2932 (a)(4).)
Existing law provides that any procedure not provided for
by this section, but necessary to carry out the purposes of
this section, shall be those procedures provided for by the
Department of Corrections and Rehabilitation for serious
disciplinary infractions if those procedures are not in
conflict with this section. (Penal Code § 2932 (c).)
Existing law provides that any person in a local
correctional facility who possesses a wireless
communication device, including, but not limited to, a
cellular telephone, pager, or wireless Internet device, who
is not authorized to possess that item is guilty of a
misdemeanor, punishable by a fine of not more than $1,000.
(Penal Code § 4575(a).) Money collected pursuant to this
section shall be placed into the inmate welfare fund, as
specified in Section 4025. (Penal Code § 4575(c).)
This bill would provide that, except as otherwise authorized by
law, or when authorized by the person in charge of the prison or
other facility under the jurisdiction of the Department of
Corrections and Rehabilitation, if any nonemployee visiting an
inmate or ward under the jurisdiction of the department is found
to be in possession of a wireless communication device upon
being searched or subjected to a metal detector, that device
shall be subject to confiscation. Notice of these provisions
shall be posted in each area in which visitors are searched
prior to visiting with an inmate or ward under the jurisdiction
of the department.
This bill would provide that, except as otherwise authorized by
law, or when authorized by the person in charge of the prison or
other facility under the jurisdiction of the Department of
Corrections and Rehabilitation, any nonemployee who possesses
with the intent to deliver, or delivers, to an inmate or ward
under the jurisdiction of the department a wireless
communication device, is guilty of a misdemeanor, punishable by
a fine not to exceed $5,000.
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This bill would provide that any nonemployee who possesses with
the intent to deliver, or delivers, to an inmate or ward under
the jurisdiction of the department, one or more wireless
communication devices and was previously convicted of the same
offense, or any nonemployee who possesses with the intent to
deliver, or delivers, to an inmate or ward under the
jurisdiction of the department, two or more wireless
communication devices, is guilty of a misdemeanor, punishable by
six months in jail, and a fine not to exceed $5,000 for each
device.
This bill provides that, except as otherwise authorized by law,
or when authorized by the person in charge of the prison or
other facility under the jurisdiction of the Department of
Corrections and Rehabilitation, any employee who possesses with
the intent to deliver, or delivers, to an inmate or ward under
the jurisdiction of the department, one or more wireless
communication devices, is guilty of a misdemeanor, punishable by
a fine not to exceed $5,000 for each device.
This bill provides that any inmate or ward who is found to be in
possession of a wireless communication device shall be subject
to time credit denial or loss of up to 180 days, as specified.
Credits forfeited pursuant to this section shall not be eligible
for restoration.
This bill provides that any inmate or ward under the
jurisdiction of the Department of Corrections and Rehabilitation
who, during the commission or attempted commission of a crime,
uses a wireless communication device, shall, upon conviction of
that crime, in addition and consecutive to the punishment
prescribed for the crime of which he or she has been convicted,
be punished by imprisonment in the state prison for two, three,
or five years.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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Current law does not include punishments for employees
of the California Department of Corrections and
Rehabilitation, or nonemployees who smuggle or have the
intent to smuggle wireless communication devices to
prison inmates. Current law does not include
punishments for inmates or wards under the jurisdiction
of the California Department of Corrections and
Rehabilitation who are in possession of a wireless
communication device or use a wireless communication
device to facilitate a crime.
2.Office of the Inspector General (OIG) Report
In May 2009, the OIG published a report, "Inmate Cell Phone Use
Endangers Prison Security and Public Safety."
(http://www.oig.ca.gov/media/reports/BOI/Special%20Report%20of%20
Inmate%20Cell%20Phone%20Use.pdf) The report stated:
According to numerous California Department of
Corrections and Rehabilitation (Department) officials,
the possession of cell phones and electronic
communication devices by California's inmates is one of
the most significant problems facing the Department
today. "Therefore, in February 2009, the Office of the
Inspector General (OIG) began a review into the
proliferation of contraband cell phones in California
prisons and how their use puts Department staff,
inmates, and the general public at risk. During 2006,
correctional officers seized approximately 261 cell
phones in the state's prisons and camps. However, by
2008, that number increased ten-fold to 2,811 with no
end in sight. Inmates' access to cell phone technology
facilitates their ability to communicate amongst
themselves and their associates outside of prison to
plan prison assaults, plot prison escapes, and
orchestrate a myriad of other illegal activity. "In
addition, these devices can provide an inmate
unrestricted and unmonitored access to the Internet,
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whereby they can communicate with unsuspecting victims,
including minors.
According to the Department, inmates are paying those
involved in smuggling cell phones into California
prisons between $500 and $1,000 per phone. There are
currently no criminal consequences for the introduction
or possession of cell phones in prison, making this
activity merely an administrative violation.
"Furthermore, current security entrance procedures
provide ample opportunities for staff and visitors to
bring contraband into prison facilities without fear of
discovery. Therefore, the introduction of cell phones
into state prisons is a low-risk, high-reward endeavor.
In addition to staff, other conduits for smuggling
cell phones include visitors, outside accomplices,
minimum support facility inmates working outside
perimeter fences, and contracted employees.
In an effort to combat this growing threat, the
Department is supporting legislation making it a crime
to introduce or possess cell phones in California's
prisons. Unfortunately, previous efforts to pass
similar legislation have failed. In addition,
technology that detects or jams cell phone signals is
commercially available but potentially expensive and
would require federal authorization to place into use.
Other detection methods that have been used or are now
in sporadic use, such as hands-on searches, metal
detectors, and x-ray equipment, are more labor
intensive and would require an increase in staffing and
funding."
The report examined CDCR's efforts at interdiction of cell
phones entering prisons:
In July 2008, the Department's Office of Internal
Affairs (OIA), in coordination with prison
investigative staff, executed a two-day surprise
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operation dubbed "Project Disconnect." OIA agents and
institutional staff conducted systematic searches of
prison housing facilities of inmates suspected to
possess cell phones. Prior to the two-day operation,
OIA agents obtained confidential information of
employees believed to be involved in smuggling cell
phones to inmates. In addition, employees who acted
suspiciously during the operation were stopped,
questioned, and searched. One employee's vehicle was
searched and fifty cell phones, labeled with inmates'
names, were seized.
In order for this methodology to be an effective tool,
the Department would have to employ enhanced security
detection devices and manual searches, similar to those
used at airports. Facility staff, contracted employees,
and visitors would be required to remove their shoes,
slide all their personal items through an x-ray
machine, walk through a metal detector, and if
necessary, submit to pat-down searches. Department
management and investigative staff said this detection
system is needed at points of entry to all facilities.
According to the Department, this procedure would
require additional staff. The Department has
determined this security screening measure will cost
approximately $28,000 at each entry point plus the cost
of additional correctional staff to monitor the
equipment and perform the searches.
Currently in California, while all visitors at any CDCR facility
are screened through metal detectors, employees, correctional
officers, non-sworn staff and contractors, are not. By
comparison, the Federal Bureau of Prisons screens anyone
entering a federal prison. The OIG report states:
The federal Bureau of Prisons is also experiencing a
rise in employees and visitors smuggling cell phones.
To combat this activity they have implemented
airport-style metal detection screening systems at all
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of their facilities. They now require all staff and
visitors to remove their shoes, belts, and any metallic
objects from their persons. Belongings are scanned and
viewed through an x-ray machine and everyone must walk
through a metal detector. This screening process
requires three correctional officers and a supervisor
during each shift change.
After some initial resistance from the correctional
worker's union, the federal Bureau of Prisons overcame
the opposition through negotiations pertaining to
institutional polices and procedural changes. Once
staff grew accustomed to the new entry screening
process, the added time it took them to report to their
workstations was minimized. Even though the federal
Bureau of Prisons does not keep statistics on the
number of cell phones seized in their prisons, they
believe the screening process has been a good
deterrent.
The OIG report concludes:
The dramatic rise in cell phones confiscated by Department
staff is a clear indicator that the current methods used by
the Department to interdict the introduction of cell phones
are ineffective. To truly eradicate cell phone usage the
Office of the Inspector General recommends that the
Secretary of the Department take the following actions:
Continue efforts to seek legislative change to
make the introduction or possession of cell phones in
all correctional facilities a criminal offense;
Collaborate with other state and federal
correctional agencies to lobby the Federal
Communications Commission (FCC) for an exemption in
using cell phone jamming devices;
Request additional funds to purchase cell phone
detection solutions and jamming devices (if
subsequently approved by the FCC);
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Request resources and funds to conduct
airport-style screening including metal and canine
detection, and when necessary, manual searches of
persons entering California prison facilities;
Restrict the size of all carrying cases being
brought into the secure areas of prisons by all
persons including backpacks, briefcases, purses, ice
chests, lunch boxes, file boxes, etc., so that they
may be x-rayed;
Require staff and visitors to place all personal
items in see-through plastic containers;
Request additional resources and funds to
increase detection activities similar to "Operation
Disconnect;"
Ensure all quarterly contract vendor packages be
shipped directly to prisons and correctional camps;
and
Implement an anonymous cell phone smuggling
reporting system for employees and inmates.
This bill addresses the first of the OIG's recommendations,
criminal penalties for smuggling and possession. It provides a
variety of penalties for different acts by different people:
Visitors found in possession of a cell phone
when entering a prison would be subject to having the
phone confiscated. These provisions would be
required to be posted in areas where visitors are
searched.
A non-CDCR employee who possesses a single
wireless communication device with the intent to
deliver it to an inmate, or delivers it to an inmate,
would be guilty of a misdemeanor, punishable by a
fine of up to $5,000. If the nonemployee possesses
more than one such device or has previously been
convicted of this offense, the crime would be
punishable by up to 6 months in county jail and a
fine of up to $5,000 per device.
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A CDCR employee who possesses one or more
wireless communication devices with the intent to
deliver it to an inmate, or delivers it to an inmate,
would be guilty of a misdemeanor, punishable by a
fine of up to $5,000 per device.
Any inmate or ward who is found to be in
possession of a wireless communication device shall
be subject to time credit denial or loss of up to 180
days, as specified. Credits forfeited pursuant to
this section shall not be eligible for restoration.
Any inmate or ward under the jurisdiction of the
Department of Corrections and Rehabilitation who,
during the commission or attempted commission of a
crime, uses a wireless communication device, shall,
upon conviction of that crime, in addition and
consecutive to the punishment prescribed for the
crime of which he or she has been convicted, be
punished by imprisonment in the state prison for two,
three, or five years.
SHOULD THESE PENALTIES BE IMPOSED?
SHOULD PENALTIES FOR NONEMPLOYEES BE GREATER THAN FOR CDCR
EMPLOYEES FOUND TO BE SMUGGLING CELL PHONES TO INMATES?
HAS CDCR IMPLEMENTED THE OIG'S OTHER RECOMMENDATIONS?
WILL REDUCING THE NUMBER OF CELL PHONES IN PRISONS REQUIRE
GREATER EFFORTS AT INTERDICTION, INCLUDING SCREENING OF STAFF
AND THE ITEMS THEY ARE ALLOWED TO BRING INTO SECURE AREAS OF
PRISONS?
3. How Cell Phones are Getting into Prisons
On June 27, 2007, the Senate Rules Committee held confirmation
hearings for then-CDCR Secretary James Tilton and Undersecretary
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Kingston "Bud" Prunty. At that hearing, Committee member
Senator Padilla asked Secretary Tilton to respond to a letter he
had Secretary Tilton send earlier regarding the problem of cell
phones in prisons. Mr. Tilton stated:
It's a significant problem, and not just in California,
but around the nation. I spent last weekend with my
peers from around the country, and that was one of our
topics there.
We have one institution, for example, down in Solano
that we have . . . I just looked at a period of . . . I
can't remember the period, but we had over 600 phones
that we found, over 300 of those were at Solano.
Now we need to track what's bringing them in, whether
it's visitors or staff. But I do know in that
institution we caught staff bringing them in.
Senator Padilla questioned Undersecretary Prunty on the source
of contraband cell phones:
SENATOR PADILLA: And so again, the question I asked a
minute ago, do we have a sense yet for how much it
varies from facility to facility as to whether it's the
personnel bringing the phones into the prison, or it's
visitors bringing the cell phones into the prison?
MR. PRUNTY: I cannot tell you how many can be
attributed to visitors. I don't . . . we haven't been
(able) to determine that yet.
We do know of the ones we were able to investigate, the
majority were brought in by staff.
HOW ARE CELL PHONES GETTING INTO PRISONS?
4. How to Prevent Cell Phones from Getting into Prisons
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At that same hearing, when Senator Padilla asked Secretary
Tilton for his recommendations as to what measures could be
taken to crack down on cell phones in prison, Secretary Tilton
mentioned ". . . if we can find some technology that's not too
expensive . . ."
SENATOR PADILLA: Funny you should mention that.
I mean, when I asked the same question to the Associate
Directors a few weeks ago, the responses were
basically, we need to make the penalties tougher.
Right now if it's a visitor, they lose their visitation
rights. If it's personnel, someone, a member of our
personnel, then they lose their job.
But that's all predicated on finding them, as you said.
That's the challenge.
I mean, any member of the public who comes into this
Capitol has to walk through a metal detector. Any of
us who flies a commercial airplane in the United
States, or anywhere in the world, has to go through a
metal detector. To go to any significant sporting
event nowadays, we're going through metal detectors.
We're searched. Our bags or purses and pockets are
searched.
Is there not an equally strict search or metal
detection infrastructure for visitors in our prisons?
MR. PRUNTY: For visitors, yes.
We have not required our staff to all be processed
through the metal detectors. And the statistics show
of the cell phones found . . . and, by the way, it
isn't a thousand. It's about 550, somewhere in that
range, but it seems it's an awful lot - two-thirds of
those were found at one institution, and we found that
that was probably the product of a particular
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individual.
We probably need to take a look at that, at our
policies and how we do screening for everyone that
comes inside, because there is evidence that some of
our own staff . . .
SENATOR PADILLA: I was going to say, and you say for
everyone that comes inside.
The question I asked had to do with the visitors; the
follow-up was with personnel because . . .
MR. PRUNTY: Yes.
SENATOR PADILLA: Again, Associate Director said it's
not just visitors that's the problem; it's our own
staff.
So, does staff have to go through the same level of
detection and search?
MR. PRUNTY: As of today, no, sir, they don't.
SENATOR PADILLA: Should they?
MR. PRUNTY: If we're going to detect contraband up to
the highest degree - and as you mentioned, everybody
that comes into this building certainly has to go
through a metal detector - that policy certainly needs
to be revisited. And I would suggest that it's not a
bad policy to pursue.
The testimony of the Secretary and Undersecretary of CDCR
established that visitors to state prisons must go through metal
detectors and, despite speculation that cell phones are
nonetheless being smuggled-in by visitors, CDCR has not
documented any such incidents. The testimony also indicated
that prison staff are not required to go through metal detectors
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and staff have been caught smuggling cells phones into prisons.
In one prison, it appears, one staff person smuggled in nearly
one-third of all cell phones discovered in the entire state
prison system. Undersecretary Prunty testified that requiring
staff to go through metal detectors would be ". . . not a bad
policy to pursue."
In 2008, Senator Padilla introduced SB 1730, which would have
required all persons entering a state correctional facility to
be screened through a metal-detector. That bill passed this
Committee and was held on suspense in the Senate Appropriations
Committee.
An alternative to requiring all staff to go through metal
detectors every day is periodic but unannounced inspections of
staff. Such an inspection recently took place at Avenal State
Prison. Although only one-third of the staff at the prison was
subjected to that inspection, it nevertheless resulted in the
discovery of 13 cell phones:
ÝWarden James] Hartley said staff members accepted the
unannounced search. "They understand the need for us
keeping this place clean," he said. The California
Correctional Peace Officers Association backs such
staff searches, association spokesman Ryan Sherman
said. But the prison needs to assign enough staff so
security lines don't back up and make employees late
for work, he said. Sherman did not hear of any
problems in Avenal, but he said a similar search
created delays at Folsom State Prison. (Search of
Avenal Prison Workers Finds Contraband, Fresno Bee ,
March 12, 2009.
http://www.fresnobee.com/local/story/1259050.html )
WHAT IS THE MOST EFFECTIVE METHOD OF KEEPING CELL PHONES OUT OF
PRISONS?
5. Technological Solutions
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SB 26 (Padilla)
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In the Rules Committee hearing discussed above, then-CDCR
Secretary Tilton mentioned the possibility of a technological
fix. A solution that involves targeted electronic jamming of
cell phones in prisons is the subject of much interest around
the country. Two bills introduced in Congress, S 231
(Hutchinson), the "Safe Prison Communications Act of 2009" and
its companion HR 560 (Brady), would have amended the Federal
Communications Act to "permit targeted interference with mobile
radio services within prison facilities." According to the Web
site for the National Conference of State Legislatures:
HR 560 amends Section 333 of the Communications Act
of 1943 (47 U.S.C. 333) and adds a waiver provision,
allowing the installation of jamming devices in a
prison (or other correctional facility) for 10 years.
The Director of the Federal Bureau of Prisons or the
Governor must petition the Federal Communications
Commission (FCC) for this waiver or its renewal after
10 years. The FCC will not charge a fee for this
petition. The FCC must provide copies of received
petitions to commercial mobile service providers in
the relevant area and maintain a public database
record of received petitions. Once a waiver is
granted to a particular prison facility, it is not
transferable to any other facility.
( http://www.ncsl.org/standcomm/sclaw/hr560summary.htm )
The feasibility and cost of technology that would permit cell
phone jamming within a precise geographic area are not clear at
this time. According to the Washington Post, corrections
officials in the District of Columbia planned a test of such
technology but this had to be "put on hold" due to a legal
challenge.
( http://www.washingtonpost.com/wp-dyn/content/article/2009/01/31/AR2
009013101548_2.html )
This month CDCR announced that it is conducting tests of a
system of cell phone call-blocking in prisons, known as "managed
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SB 26 (Padilla)
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access." (Calif. Prison Tries Blocking Cell Calls,
http://www.kcra.com/news/27148812/detail.html )
In December 2010, the National Telecommunications and
Information Administration (NTIA), in collaboration with NIJ the
Federal Communications Commission and Federal Bureau of Prisons,
issued a report entitled, "Contraband Cellphones in Prison -
Possible Wireless Technology Solutions."
( http://www.ntia.doc.gov/reports/2010/ContrabandCellPhoneReport_D
ecember2010.pdf#page=37 )
Technologies examined in the report include:
A jamming device transmits on the same radio frequencies
as the cell phone, disrupts the communication link between
the phone and the cell phone base station, and essentially
renders the hand-held device unusable until such time as
the jamming stops.
Managed access systems intercept calls in order to
prevent inmates from accessing carrier networks. The cell
signal is not blocked by a jamming signal, but rather, is
captured (or re-routed) and prevented from reaching other
network base stations, thereby preventing the completion of
the call.
Detection is the process of locating, tracking, and
identifying various sources of radio transmissions - in
this case, cell phone signals from prisons.
Standardized protocols rely on "sets of instructions"
communicating with the hand-held device by essentially
locking the device and making it unusable.
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Hybrid systems use a combination of both managed access
and detection techniques to locate and control contraband
cell phone use.
Non-Linear Junction Detectors (NLJDs) are hand-held
devices that require staff to physically search a
prisoner's cell for the contraband phone.
While this report points to managed access as potentially more
feasible than signal jamming devices in limiting inmate's
ability to use cell phones, it received comments from one
industry analyst that, "? proponents Ýof managed access] have
never addressed the full ? cost implications." (Id. at page
22.) CDCR Secretary Matt Cate estimated the cost to be $1
million per prison. (Calif. Prison Tries Blocking Cell Calls,
supra.) Additionally, David Furth of the FCC's Public Safety
and Homeland Security Bureau stated that, while the technology
shows promise, "We still have work to do." (Ibid.)
IS A SOLUTION, SUCH AS MANAGED ACCESS, CURRENTLY TECHNOLOGICALLY
FEASIBLE?
(More)
HOW DOES THE COST OF MANAGED ACCESS COMPARE TO THE COST OF
REQUIRING "AIRPORT-STYLE" SCREENING OF EMPLOYEES?
6. Argument in Support
The Association of Orange County Deputy Sheriffs states:
California Department of Corrections and Rehabilitation
has indicated that their investigations have shown that
inmates have used wireless communication devices to
communicate with other inmates in the prison system as
well as with persons not in the system, to plan crimes
such as escapes along with coordinating the introduction
of contraband into prisons. The number of cell phones
confiscated each year has grown dramatically. In 2010,
the number exceeded 10,761.
7. Argument in Opposition
The Friends Committee on Legislation states:
We have two objections to SB 26 in its current form:
Specifically, we object to subjecting wireless
communication devices to confiscation that are
inadvertently in a visitor's possession when being
processed through the prison visitor's center. Amend.
XIV to the US Constitution prohibits the confiscation of
property without due process of law. While we
appreciate that the legislation requires the posting of
signs, many of us have inadvertently had prohibited
items in our possession when passing through airport
metal detectors despite warnings placed in signs.
Airport passengers are given the choice of forfeiting
the item or checking the item in. A cell phone has
become an ordinary staple of modern life, and most pay
phones have been removed from prison parking lots, which
could create a real hardship for the families of
prisoners. If, on the other hand, a correctional
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officer has good reason to suspect that the visitor
intended to smuggle a cell phone into the prison and it
is being held as evidence in an investigation, then the
cell phone should be confiscated.
We also object to the separate penalties for
non-employees and employees. Amendment XIV of the US
Constitution also guarantees equal protection. It seems
to us that if anyone should suffer more severe
consequences for this same behavior, employees charged
with the responsibility and authority for the safe
operation of California prisons would warrant the higher
penalty.
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