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