BILL ANALYSIS Ó
SB 26
Page 1
Date of Hearing: August 17, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 26 (Padilla) - As Amended: August 16, 2011
Policy Committee: Public
SafetyVote:7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill increases the penalty for inmates who possess cell
phones, and facilitates the Department of Corrections and
Rehabilitation's (CDCR) efforts to implement a managed access
system to block unauthorized wireless transmissions.
Specifically, this bill:
1)Provides that a person who possesses, with intent to deliver
to an inmate, a cell phone or wireless communication device,
is guilty of a misdemeanor, punishable by up to six months in
county jail and/or a fine of up to $5,000 for each device.
2)Provides that an inmate who possesses a cell phone or other
wireless device may lose up to 90 days of sentence credit.
(Current law allows a 30-day forfeiture for a disciplinary
offense.)
3)Provides that a visitor's cell phone or wireless device is
subject to temporary confiscation. Requires notice regarding
potential confiscation to be posted in all areas where
visitors are searched prior to visitation.
4)Provides that a person who brings an unauthorized cell phone
or wireless device within the secure perimeter of a prison is
deemed to consent to CDCR using managed access technology to
prevent that device from sending or receiving while within the
secure perimeter. Notice of this provision shall be posted at
all public entry gates of the prison.
5)Specifies CDCR may not capture information from authorized
cell phones or wireless devices without a warrant pursuant to
SB 26
Page 2
current law.
6)Requires CDCR to obtain a search warrant before accessing data
or communications captured from unauthorized cell phones or
wireless devices.
7)Specifies the new inmate phone system contract, which is being
designed to cover the cost of managed access, may not increase
the cost of inmate calls.
FISCAL EFFECT
1)Major one-time costs of about $1 million per prison ($33
million) for implementation of the managed access system.
These costs, however, will be covered by new revenues as the
cost of the system is being built into the new inmate
telephone system contract, which pays the contractor based on
inmate call volume. Ongoing maintenance costs will also be
covered by the new contract. (The contract process is
underway; CDCR expects to select and sign a new contractor in
February 2012.)
CDCR's rationale is that significantly reducing, if not
eliminating, inmate access to illegal cell phones and wireless
devices will dramatically increase use of the inmate telephone
system, thereby allowing the contractor's profits to increase
sufficiently to provide managed access at no new cost to the
state and with no increase to inmate phone charges, which
range from about 50 cents to $6.50 for a 15 minute phone call.
Because the length of the contract will be at least six years,
the contractor should have time to recoup its managed access
costs. For the past two years the inmate call system has
created revenues of about $30 million for the current
contractor.
2)Significant annual GF costs, potentially in the range of $2
million, for longer prison terms as a result of credit
forfeiture.
This bill specifies any inmate who possesses a cell phone may
lose up to 90 days of credit. Current law specifies up to 30
days of sentence credit may be forfeited for a single
disciplinary offense as defined by CDCR. According to the
SB 26
Page 3
Office of the Inspector General, in 2006, correctional
officers seized 261 cell phones. In 2008, the number increased
to 2,811. In 2011, CDCR is on pace to seize about 15,000 cell
phones. Many of these phones were taken from staff and
visitors; others were discovered on the grounds. If managed
access reduces the current annual seizure pace by 50%, if 25%
of the phones seized are from inmates, and if 25% of those
seizures result in an additional two months in prison, the
annualized GF cost would be about $2 million, based on
overcrowding costs.
3)Unknown nonreimbursable local law enforcement and
incarceration costs to the extent correctional staff and/or
others are convicted of trafficking cell phones in state
prisons. For example, if 33 persons served 6 months in county
jail, local incarceration costs would be in the range of
$600,000, offset to a degree by increased fine revenue.
4)In addition, to the extent that a person convicted of
misdemeanor cell phone trafficking was on parole or probation,
and is revoked to state prison as a result, state GF prison
costs would increase. For example, if six persons were revoked
to state prison as a result of this bill, annual costs would
be in the range of $100,000.
COMMENTS
1)Rationale . The goal of the author and sponsor, CDCR, is to
curtail inmate access to cell phones and wireless devices,
which they contend is a major public safety issue. 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."
According to CDCR's cell phone interdiction project summary,
"Controlling these phones is challenging due to limited
financial resources, the vastness of prison property and
population and the multiple ingress points for contraband, and
finally, the legal limitations imposed on CDCR and the
evolution of technology in preventing these communications.
Due to these complexities, CDCR has developed a multi-layered
strategy referred to as the Cell Phone Interdiction Project?
Factors being integrated into the analysis include operational
SB 26
Page 4
feasibility, available technologies, legal limitations at the
state and federal level, fiscal impacts, and timelines for
implementation."
The centerpiece of CDCR's strategy at this juncture is a cell
phone signal interruption technology known as managed access.
CDCR plans to phase in managed access, beginning with one
prison in June 2012, and finishing systemwide implementation
by June 2013.
(It is important to note CDCR does not need statutory
authorization to implement managed access. CDCR has already
begun the procurement process. The purpose of this bill is to
provide a presumptive blanket notice of consent for persons
who bring a cell phone into the secure perimeter of a prison.)
2)Managed Access systems intercept calls to prevent inmates from
accessing mobile networks. The cell signal is not jammed, but
rather is captured, blocking completion of the call. Managed
access allows calls by authorized users, such as
prison-authorized cell phone numbers, but denies unauthorized
numbers access to the network.
According to CDCR's cell phone interdiction project summary,
managed access deploys a cellular umbrella over the targeted
area, with passive or active operation. In passive mode,
mobile devices continue to operate as usual, while the system
logs the International Mobile Equipment Identity (IMEI),
cellular phone number, mobile device hardware ID, electronic
serial number (ESN), called number, and text messages. Once
this information is collected, mobile devices are categorized
as authorized or unauthorized.
In active mode, devices on the authorized list register with
the system and pass to the carrier network as usual while
unauthorized devices are denied access to the network.
3)CDCR Managed Access Pilot . After reviewing the experiences of
the two states that tested managed access in state prisons,
Mississippi and South Carolina, CDCR conducted its own limited
pilot at the Solano and Vacaville prisons this year. In the
wake of the limited pilots, CDCR concluded managed access can
significantly decrease the danger of unauthorized cell phone
use, noting the system's ability to (a) safeguard public
safety-related transmissions - correctional, police, fire and
SB 26
Page 5
medical; (b) receive FCC and cellular carrier approval; (c)
target the security perimeter; and (d) refine coverage and
track detailed results.
The pilot was conducted over 11 days, for about eight
hours a day. During this time, 2,593 wireless devices
were detected and 24,190 unauthorized communication
attempts were blocked.
In one day on one yard in one institution, the system
prevented 400 unauthorized devices and blocked 4,000
unauthorized communication attempts from those devices.
Conversely, over a 10-day period the inmate phone system
showed an average 64% increase in authorized inmate phone
volume on that same yard from the previous year,
contributing to CDCR's confidence that the proceeds from
authorized inmate phone calls will be sufficient to fund
the managed access with no increased costs to inmates.
4)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." According to the report,
"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. ÝIn the first seven months of 2011, more than 8,500
cell phones were discovered within the secure perimeter.]
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."
SB 26
Page 6
To eradicate cell phone usage, the OIG recommendations
included the following:
a) Continue efforts to seek statutory changes to make the
possession of cell phones in correctional facilities a
criminal offense.
b) Collaborate with state and federal agencies to lobby the
Federal Communications Commission (FCC) for an exemption in
using cell phone jamming devices.
c) Request resources to conduct airport-style screening
including metal and canine detection, and manual searches
of persons entering California prison facilities
d) Restrict the size of carrying cases brought into secure
areas of prisons by all persons.
e) Require quarterly contract vendor packages be shipped
directly to prisons.
5)Technological Solutions . A December 2010 report, "Contraband
Cell phones in Prison - Possible Wireless Technology
Solutions," produced by the National Telecommunications and
Information Administration (NTIA), in collaboration with the
Federal Communications Commission, the Federal Bureau of
Prisons, and the National Institute of Justice reviewed a
series of technologies, including managed access, jamming
devices, and transmission detection and location systems. The
NTIA concluded:
"All the solutions involve a wide array of issues, including:
complex technical, legal and regulatory issues; installation
and operational costs; and interference potential. Each
approach has trade-offs and each offers advantages and
disadvantages. The use of jammers by State or local prison
officials is a violation of the Communications Act of 1934,
and hence illegal. Jamming cell signals may be effective
SB 26
Page 7
where legal in Federal applications, and in some settings with
careful design, but its effectiveness and utility may be
greatly diminished by interference with other communications,
including critical police, firefighter and emergency medical
communications and 9-1-1 calls. Managed access technologies
hold promise as a solution. The technology requires close
coordination with the FCC and wireless carriers; and the FCC
has already developed the necessary regulatory requirements.
Further, while the first managed access deployment in
Mississippi was accomplished at no cost to the prison
authority, it is uncertain whether this business model can be
applied successfully in other States."
6)CDCR's Operation Disconnect is an ongoing effort to conduct
monthly random contraband searches conducted by CDCR's office
of internal affairs at each prison. A sample of search results
through June 2011 shows 673 searches, resulting in the
following contraband: 471 cell phones; 450 flash drives; 125
DVDs; 697 CDs; 110 iPods; 302 lighters or matches; 4,678
miscellaneous contraband objects.
These 673 searches also resulted in 1,156 disciplinary letters
of instruction pending review by the warden, and 337
disciplinary referrals to internal affairs.
7)Support . According to the CA Correctional Peace Officers
Association, "Cell phones 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 throughout the state and
have been used in the planning of escapes and the smuggling of
contraband into prisons."
8)Opposition . 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 facilities are
screened through metal detectors. CDCR employees,
correctional officers, non-sworn staff, and contractors are
not. Existing evidence suggests most cell phones are smuggled
into state correctional facilities by the latter group.
According to the Office of the Inspector General's report on
SB 26
Page 8
inmate cell phone use, 'Ýc]oncealment on their (staff) 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 employees,
correctional officers, non-sworn staff, and contractors, SB 26
does little to stem the supply of cell phones into
correctional facilities."
9)Related Legislation .
a) SB 139 (Alquist), replicates Operation Disconnect and
requires CDCR to conduct periodic random searches of
employees and vendors entering the secure perimeter of a
state prison for contraband. SB 139 is pending on this
committee's Suspense File.
b) SB 525 (Padilla), 2010, which created a misdemeanor for
possession of a cell phone or wireless device, was vetoed
because Gov. Schwarzenegger wanted a felony.
c) SB 434 (Benoit), 2009, which also created a misdemeanor
for possession of a cell phone or wireless device, was held
on this committee's Suspense File.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081