BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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                              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


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           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 

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          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 

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             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 

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            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


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          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

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          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, 

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            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

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