BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 26| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 26 Author: Padilla (D), et al. Amended: 8/31/11 Vote: 27 - Urgency SENATE PUBLIC SAFETY COMMITTEE : 7-0, 3/22/11 AYES: Hancock, Anderson, Calderon, Harman, Liu, Price, Steinberg SENATE APPROPRIATIONS COMMITTEE : 8-0, 5/26/11 AYES: Kehoe, Walters, Alquist, Lieu, Pavley, Price, Runner, Steinberg NO VOTE RECORDED: Emmerson SENATE FLOOR : 39-0, 6/2/11 AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Dutton, Emmerson, Evans, Fuller, Gaines, Hancock, Harman, Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio, Simitian, Steinberg, Strickland, Vargas, Walters, Wolk, Wright, Wyland, Yee NO VOTE RECORDED: Runner ASSEMBLY FLOOR : 76-0, 09/07/11 - See last page for vote SUBJECT : Wireless communication devices in state prisons SOURCE : Author CONTINUED SB 26 Page 2 DIGEST : This bill (1) provides that any inmate found to be in possession of a wireless communication device shall be subject to time credit denial or loss of up to 90 days, (2) facilitates the deployment of managed access technology that will prevent smuggled cell phones from sending or receiving communications within the secure perimeter of a prison, and (3) provides that any person, employee or nonemployee who possesses cell phones with the intent to deliver, or delivers, to an inmate is guilty of a misdemeanor, punishable by six months in jail for each device and a fine of up to $5,000 per device. Assembly Amendments (1) delete the provision relative to an extension of discharge pertaining to a ward, (2) prohibit CDCR from accessing data from a captured wireless device unless a search warrant has been obtained, (3) provide for a fine when a contractor discloses or uses information, and (4) add an urgency clause. ANALYSIS : Existing law prohibits unauthorized communication with inmates in state prison. A person who violates that provision is guilty of a misdemeanor. Existing law further prohibits a person in a local correctional facility from possessing a wireless communication device, except as specified. Existing law provides for the accumulation, denial, or loss of time credits for inmates of the Department of Corrections and Rehabilitation (CDCR) based on each inmate's behavior while under the jurisdiction of CDCR. This bill provides that (1) except as otherwise authorized by law, or when authorized by either the person in charge of the prison or other institution under the jurisdiction of CDCR or an officer of the institution empowered to give that authorization, a 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 any component thereof, including, but not limited to, a subscriber identity module (SIM card) or memory storage device, is guilty of a misdemeanor, punishable by imprisonment in the county jail not exceeding six months, a fine not to $5,000 for each device, or both that fine and imprisonment, and (2) if a person visiting an CONTINUED SB 26 Page 3 inmate or ward in the custody of CDCR, upon being searched or subjected to a metal detector, is found to be in possession of a cellular telephone or other wireless communication device or any component thereof, including, but not limited to, a SIM card or memory storage device, that device or component shall be subject to confiscation but shall be returned on the same day the person visits the inmate or ward, unless the cellular telephone or other wireless communication device or any component is held as evidence in a case where the person is cited for a violation of the provisions in #1 above. 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. This bill provides that notice of these provisions shall be posted in all areas where visitors are searched prior to visitation with an inmate or ward in the custody of CDCR. This bill 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 of up to 90 days. This bill provides that CDCR shall not access data or communications that have been captured using available technology from unauthorized use of a wireless communication device except after obtaining a valid search warrant. This bill further provides that: 1. CDCR shall not capture data or communications from an authorized wireless communication device, except as already authorized under existing law. 2. CDCR shall not access data or communications that have been captured using available technology from an authorized wireless communication device, except as already authorized under existing law. 3. If the available technology to prevent wireless communications from sending and receiving telephone calls or other forms of electronic communication extends CONTINUED SB 26 Page 4 beyond the secure perimeter of the prison or institution, CDCR shall take all reasonable actions to correct the problem. 4. Any contractor or employee of a contractor or CDCR who knowingly and willfully, without authorization, obtains, discloses, or uses confidential information in violation of this bill shall be subject to an administrative fine or civil penalty not to exceed $5,000 for a first violation, or $10,000 for a second violation, or $25,000 for a third or subsequent violation. Prior Legislation :SB 525 (Padilla) passed the Senate (34-0) on August 9, 2010, but was vetoed. SB 434 (Benoit, 2009) died on suspense in Assembly Appropriations Committee. SB 1730 (Padilla, 2008) died on suspense in Senate Appropriations Committee. SB 1267 (Leslie, 2006) died on suspense in Senate Appropriations Committee. SB 1831 (Margett, 2006) died in Senate Public Safety Committee. In his veto message of SB 525, Governor Schwarzenegger 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 CONTINUED SB 26 Page 5 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 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." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund Loss of up to six months unknown, major costs for increased General in sentencing credit state incarceration of $1,200 for every 100 devices attributable to an inmate/ward CONTINUED SB 26 Page 6 Notification posting minor, absorbable costs to CDCR General SUPPORT : (Verified 9/7/11) Association of Orange County Deputy Sheriffs AT&T California Association of Highway Patrolmen California Correctional Peace Officers Association California Correctional Supervisors Organization Inc. California District Attorneys Association California Fraternal Order of Police California Partnership to End Domestic Violence California Peace Officers' Association California Police Chiefs Association California Probation Parole and Correctional Association California State Sheriffs' Association City and County of San Francisco, District Attorney George Gascon, Bell Gardens Police Department City of Buena Park Police Department City of Chula Vista Police Department City of Claremont Police Department City of El Monte Police Department City of Glendale Police Department City of Long Beach Police Department City of Menlo Park Police Department City of San Bernardino Police Department City of San Jose, Mayor Chuck Reed Crime Victims United CTIA - The Wireless Association Davis Police Department Gardena Police Department Inglewood Police Department Long Beach Police Officers Association Los Angeles City Attorney, Carmen Trutanich Los Angeles County Police Chiefs Association Los Angeles County Professional Peace Officers Association Los Angeles County Sheriff, Lee Baca Newport Beach Police Department Oceanside Police Department Orange County Sheriff-Coroner, Sandra Hutchens Palos Verdes Estates Police Department Peace Officers Research Association of California San Bernardino County Sheriff's Department CONTINUED SB 26 Page 7 San Francisco Police Department San Mateo County Police Chiefs' and Sheriff's Association Santa Ana Police Officers Association Santa Barbara County District Attorney, Joyce E. Dudley Santa Clara County Police Chiefs' Association Shafter Police Department South Pasadena Police Department Riverside County Sheriff, Stan Sniff United States Senator Dianne Feinstein ARGUMENTS IN SUPPORT : According to the author: "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." 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." ASSEMBLY FLOOR : 76-0, 09/07/11 AYES: Achadjian, Alejo, Allen, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, CONTINUED SB 26 Page 8 Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Ammiano, Furutani, Gorell, Hall RJG:mw 9/8/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED