BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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 








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            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 








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            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 








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            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 








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            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. In 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
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            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 








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            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 








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            inmate cell phone use, 'c]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