BILL ANALYSIS Ó
SB 26
Page 1
Date of Hearing: July 5, 2011
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 26 (Padilla) - As Amended: June 14, 2011
As Proposed to Be Amended in Committee
SUMMARY : Provides that a person who possesses with the intent
to deliver, or delivers, to an inmate or ward in the custody of
the Department of Corrections and Rehabilitation (CDCR) any
cellular telephone or other wireless communication device or any
component thereof, including, but not limited to, subscriber
identity module (SIM) cards and memory storage devices, is
guilty of a misdemeanor, punishable by imprisonment in the
county jail not exceeding 6 months, or a fine not to exceed
$5,000 for each device, or both. Specifically, this bill :
1)Provides that a person who is visiting an inmate or ward under
the jurisdiction of CDCR who is found to be in possession of a
cellular telephone, wireless communication device, or any
component thereof, as specified, upon being searched or
subjected to a metal detector, shall be subject to having that
device confiscated and returned the same day the person visits
the inmate or ward, except as specified.
2)States that if, upon investigation, it is determined that no
prosecution will take place, the cellular telephone or other
wireless communication device or any component thereof shall
be returned to the owner at the owner's expense.
3)Requires notice of the above confiscation provisions to be
posted in all areas where visitors are searched prior to
visitation with an inmate or ward in the custody of the
department.
4)Provides that any inmate who is found to be in possession of a
wireless communication device shall be subject to time credit
denial or loss pursuant to laws relating to inmate credits.
Notwithstanding existing law, credits forfeited pursuant to
the provisions in this bill shall not be eligible for
restoration.
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5)States that a person who brings, without authorization, a
wireless communication device onto the grounds of any prison
or institution housing offenders under the jurisdiction of
CDCR is deemed to have given his or her consent to CDCR using
available technology to prevent that wireless device from
sending or receiving telephone calls or other forms of
electronic communication. Notice of this provision shall be
posted at all public entry gates of the prison.
6)Requires CDCR to obtain a search warrant before accessing any
data or communications that have been captured using available
technology from unauthorized use of a wireless communication
device.
EXISTING LAW :
1)States 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. ÝPenal Code Section 4575(a).]
2)States that every person who brings or takes any unauthorized
letter, writing, literature, or reading matter to or from any
prisoner or person in custody of CDCR, is guilty of a
misdemeanor. (Penal Code Section 4570.)
3)States that every person who delivers an authorized written
communication to any prisoner or person detained therein, or
being escorted to or from that vehicle, or takes from or gives
to the prisoner any item, is guilty of a misdemeanor. (Penal
Code Section 4570.1.)
4)States that any person who knowingly brings into any state
prison or other institution under the jurisdiction of CDCR, or
into any prison camp, prison farm, or any other place where
prisoners or inmates of these institutions are located under
the custody of prison or institution officials, officers, or
employees, or into any county, city and county, or city jail,
road camp, farm or any other institution or place where
prisoners or inmates are being held under the custody of any
sheriff, chief of police, peace officer, probation officer, or
employees, or within the grounds belonging to any institution
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or place, any alcoholic beverage, any drugs, other than
controlled substances, in any manner, shape, form, dispenser,
or container, or any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming any drug other than controlled substances, without
having authority so to do by the rules of CDCR, the rules of
the prison, institution, camp, farm, place, or jail, or by the
specific authorization of the warden, superintendent, jailer,
or other person in charge of the prison, jail, institution,
camp, farm, or place, is guilty of a felony. ÝPenal Code
Section 4573.5.]
5)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. Possession of contraband, as defined, may result in
disciplinary action and confiscation of the contraband. (15
Cal. Code of Regs. Section 3006.)
6)Provides that for every six months of continuous
incarceration, a prisoner shall be awarded credit reductions
from his or her term of confinement of six months. A lesser
amount of credit based on this ratio shall be awarded for any
lesser period of continuous incarceration. Credit should be
awarded pursuant to regulations adopted by the secretary.
ÝPenal Code Section 2933(b).]
7)States that not more than 180 days of credit may be denied or
lost for a single act of misconduct, except specified offenses
which could be prosecuted as a felony, whether or not
prosecution is undertaken. ÝPenal Code Section 2932(a)(2).]
8)States that a search warrant may be issued when the property
or things are in the possession of any person with the intent
to use them as a means of committing a public offense, or in
the possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing them
from being discovered. ÝPenal Code Section 1524(a)(3).]
9)States that a search warrant may be issued when the property
or things to be seized consist of any item or constitute any
evidence that tends to show a felony has been committed, or
tends to show that a particular person has committed a felony.
ÝPenal Code Section 1524(a)(4).]
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10)States that a search warrant may be issued when a provider of
electronic communication service or remote computing service
has records or evidence, as specified in existing provisions
of law, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are in
the possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery. ÝPenal Code Section 1524(a)(7).]
11)Provides that a provider of wire or electronic communication
services or a remote computing service, upon the request of a
peace officer, shall take all necessary steps to preserve
records and other evidence in its possession pending the
issuance of a search warrant or a request in writing and an
affidavit declaring an intent to file a warrant to the
provider. Records shall be retained for a period of 90 days,
which shall be extended for an additional 90-day period upon a
renewed request by the peace officer. ÝPenal Code Section
1524.3(d).]
12)Provides that no warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized. (U.S. Const., 4th Amend.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Smuggled cell
phones in our State prison system are a growing and dangerous
problem. Inmates with access to cell phones have been
ordering murders, organizing escapes, facilitating drug deals,
controlling street gangs, and terrorizing rape victims. In
2006 the number of phones confiscated was 261. Last year it
reached 11,000. This year we are on pace to exceed 13,000. 43
states and the federal government have taken action to tackle
this problem in their prisons. Yet California which has the
biggest problem has failed to act year after year."
2)Background : According to the background provided by the
author, "Current law does not provide a sufficient penalty for
smugglers of cell phones into prison or for the inmates who
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possess them."
3)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". 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, 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
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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 OIG made several recommendations in its report to ameliorate
the harm caused by the proliferation of cell phones in prisons
and found "the dramatic rise in cell phones confiscated by
CDCR staff is a clear indicator that the current methods used
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);
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."
4)Technological Solutions : In December 2010, the National
Telecommunications and Information Administration (NTIA), in
collaboration with the National Institute of Justice (NIJ),
the Federal Communications Commission, and the Federal Bureau
of Prisons, issued a report entitled, "Contraband Cellphones
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in Prison - Possible Wireless Technology solutions. ÝThe full
report can be found at (http://www.ntia.doc.gov/reports/2010/
ContrabandCellPhoneReport_December2010.pdf).]
Technologies examined in the report include:
a) 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.
b) 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
captured (or re-routed) and prevented from reaching other
network base stations, thereby preventing the completion of
the call.
c) Detection is the process of locating, tracking, and
identifying various sources of radio transmissions - in
this case, cell phone signals from prisons.
d) Standardized protocols rely on "sets of instructions"
communicating with the hand-held device by essentially
locking the device and making it unusable.
e) Hybrid systems use a combination of both managed access
and detection techniques to locate and control contraband
cell phone use.
f) 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 more feasible
than signal jamming, it received comments that "proponents
have never addressed the full . . . cost implications. (Id.
at p. 22.) CDCR Secretary Matthew Cate estimated the cost to
be $1 million per prison. ÝCalifornia Prison Tries Blocking
Cell Calls, found at < http://www.kcra.com/news/27148812/
detail.html> (as of June 22, 2011).] Additionally, if the
engineering is not right, managed access technology has the
potential to accidentally intercept and block cellphone calls
made outside prison walls. (Id.) Opponents of this bill have
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raised constitutional free speech and privacy concerns for
non-inmates who may have their phone calls and text messages
intercepted and stored in a database for an unspecified period
of time, with the possibility that this information could
later be accessed for a criminal investigation.
5)Governor's Veto Message : SB 525 (Padilla) of the 2009-10
Legislative Session, was substantially similar to this bill
and was vetoed. In his veto message, the Governor stated:
"Over the last few years, the proliferation of wireless
communication devices in California's prisons has become one
of the most challenging issues facing the Department of
Corrections and Rehabilitation. As technology has advanced
and these devices have become smaller and more powerful, the
threat these devices pose to employees in correctional
facilities and the public at large has grown. These devices
allow inmates to plan prison assaults and escapes, harass and
intimidate witnesses and victims, and facilitate other
criminal activities, including directing the activities of
criminal street gangs and authorizing murders.
"In response to this serious threat, my Administration launched
programs to conduct random searches at prisons, established a
committee to study cell phone jamming and detection
techniques, and even utilized trained dogs to aid in
uncovering contraband devices. In 2009, my administration
sponsored legislation to make possession of an unauthorized
wireless communication device in prison a felony.
Unfortunately, the Legislature failed to pass this commonsense
measure.
"Over a year later, the Legislature has passed this measure,
which does not make it a crime for an inmate to possess a
wireless communications device in a prison. Instead, this
measure would only make it a crime to bring a wireless device
into a prison with the intent to furnish it to an inmate, a
crime that would only be punishable by a $5,000 fine.
Although our prisons continue to face drastic budget cuts and
overcrowding, it is inexcusable to treat the threat of
wireless communications devices in prisons so lightly. Signing
this measure would mean that smuggling a can of beer into a
prison carries with it a greater punishment than delivering a
cell phone to the leader of a criminal street gang.
"I applaud the author for attempting to address this issue and
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acknowledge that this may, in fact, be the strongest measure
that will emerge from the Legislature on this issue. And
while signing this measure might be better than nothing, I
cannot sign a measure that does so little. I urge the
Legislature to pass a measure that will deter the conduct of
persons smuggling wireless communication devices into prisons
with the threat of jail time as well as punish the inmates who
are caught possessing these devices."
6)Argument in Support : According to the California Peace
Officers Association , "Cellphones in prisons and correctional
facilities have become a significant problem in California.
They are used by inmates to cultivate dangerous gang activity,
as they allow imprisoned gang leaders to maintain their role
and hierarchical position in gangs. These inmates continue to
coordinate dangerous criminal activity; it is just done from
within prison walls. Additionally, cell phones allow inmates
to communicate with other inmates in different prisons
throughout the state and have been used in the planning of
escapes and the smuggling on contraband into prisons."
7)Arguments in Opposition :
a) According to the Prison Law Office , "SB 26 is misguided
and will not significantly reduce inmate and ward access to
cell phones. Visitors to all CDCR facility are screened
through metal detectors. CDCR employees, correctional
officers, non-sworn staff, and contractors are not.
Existing evidence suggests that most cell phones are
smuggled into state correctional facilities by the latter
group. According to the Office of the Inspector General's
report on inmate cell phone use, 'Ýc]oncealment on their
(staff's) person has proven the most effective method (of
smuggling cell phones into correctional institutions)
because staff are rarely searched due to the cost and
logistics of searching hundreds of employees.' Without a
provision to search CDCR employees, correctional officers,
non-sworn staff, and contractors, SB 26 does little to stem
the supply of cell phones into state correctional
facilities."
b) According to the American Civil Liberties Union , "We
have a number of First Amendment, privacy, and other
concerns including the possibility of unintentional
interception of cell phone/e-mails etc. from individuals in
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prison parking lots or even surrounding neighborhoods. In
addition, we strongly suggest that CDCR should be limited
to blocking calls/communications from people incarcerated.
The interception of actual conversations or other
communications by the Government raises additional
significant issues, that should be dealt with separately in
another bill."
8)Related Legislation : SB 139 (Alquist) requires the CDCR to
oversee and conduct periodic and random searches of employees
and vendors entering the secure perimeter of a state prison
for contraband. SB 139 is pending hearing by the Assembly
Committee on Appropriations.
9)Prior Legislation :
a) SB 525 (Padilla), of the 2009-10 Legislative Session,
would have created a misdemeanor for the possession of a
cellular telephone device or wireless communication device
with the intent to deliver that device to an inmate or ward
in CDCR's custody. SB 525 was vetoed.
b) SB 434 (Benoit), of the 2009-10 Legislation Session,
would have stated that any inmate or ward who possesses any
cellular telephone or other wireless communication device,
or any component thereof, including, but not limited to,
SIM cards and memory storage devices, or any person who
possesses with the intent to deliver, or delivers, to an
inmate or ward in the custody of CDCR, any cellular
telephone or other wireless communication device or
component, including, but not limited to, SIM cards and
memory storage devices, is guilty of a misdemeanor,
punishable by a fine not to exceed $5,000. SB 434 was held
on the Assembly Committee on Appropriations' Suspense File.
REGISTERED SUPPORT / OPPOSITION :
Support
AT&T
California Correctional Supervisors Organization
California District Attorneys Association
California Partnership to End Domestic Violence
California Police Chiefs Association
CTIA - The Wireless Association
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Los Angeles City Attorney
United States Senator Dianne Feinstein
Opposition
American Civil Liberties Union
California Public Defenders Association
Prison Law Office
Youth Law Center
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744