BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              
          S
                             2011-2012 Regular Session               
          B

                                                                     
          1
                                                                     
          3
                                                                     
          9
          SB 139 (Alquist)                                            

          As Introduced January 31, 2011 
          Hearing date:  May 3, 2011
          Penal Code
          SM:dl


                              CELL PHONES IN PRISON:

                                 RANDOM SEARCHES  


                                    HISTORY

          Source:  Author

          Prior Legislation: SB 1066 (Oropeza) - 2010, Vetoed
                       SB 525 (Padilla) - Pending in Assembly Public 
                       Safety 
                         SB 434 (Benoit) - 2009, died on suspense in 
                         Assembly Appropriations
                       SB 1730 (Padilla) - 2008, died on suspense in 
                       Senate Appropriations 
                       SB 1267 (Leslie) - 2006, died on suspense in 
                       Senate Appropriations 
                       SB 1831 (Margett) - 2006, died in Senate 
          Public Safety 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 2




          Support: Life Support Alliance; Friends Committee on 
          Legislation of California

          Opposition:None known

                                         
                                   KEY ISSUES
           
          SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION 
          (CDCR) BE REQUIRED TO OVERSEE AND CONDUCT PERIODIC AND 
          RANDOM SEARCHES OF EMPLOYEES AND VENDORS ENTERING A STATE 
          PRISON FOR CONTRABAND, AS SPECIFIED?
                                                           
          (CONTINUED)


           SHOULD CDCR BE REQUIRED TO PROVIDE A WRITTEN REPORT TO THE 
           LEGISLATURE AND THE INSPECTOR GENERAL AT LEAST MONTHLY REGARDING 
           THESE SEARCHES, AS SPECIFIED?

           SHOULD THE INSPECTOR GENERAL BE REQUIRED TO OVERSEE, AT A MINIMUM, 
           CDCR'S SEARCH OF ONE STAFF SHIFT PER YEAR AT EACH ADULT INSTITUTION, 
           IN ORDER TO ENSURE THE INTEGRITY OF THE PROCESS AND OF THE SEARCHES, 
           AND THE ACCURACY OF THE REPORTS SUBMITTED BY CDCR, AS SPECIFIED?
                

                                    PURPOSE
           
           The purpose of this bill is to (1) require the Department 
          of Corrections and Rehabilitation (CDCR) to oversee and 
          conduct periodic and random searches of employees and 
          vendors entering the secure perimeter of a state prison 
          under the jurisdiction of the department for contraband, as 
          specified; (2) require CDCR to provide a written report to 
          the Legislature and the Inspector General at least monthly 
          regarding these searches, as specified; and (3) require the 
          Inspector General to oversee, at a minimum, CDCR's search 
          of one staff shift per year at each adult institution, in 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 3



          order to ensure the integrity of the process and of the 
          searches, and the accuracy of the reports submitted by 
          CDCR, as specified.

           Existing law  defines "contraband" in a prison as "anything 
          which is not permitted, in excess of the maximum quantity 
          permitted, or received or obtained from an unauthorized 
          source."  (15 Cal. Code of Regs.  3000.)  Possession of a 
          cellular telephone or any other electronic communications 
          device by an inmate is specifically prohibited.  (15 Cal. 
          Code of Regs.  3000(c)(19).)
           
          Existing law  creates the office of the Inspector General 
          and requires the Inspector General to review departmental 
          policy and procedures, conduct audits of investigatory 
          practices and other audits, be responsible for 
          contemporaneous oversight of internal affairs 
          investigations and the disciplinary process, and conduct 
          investigations of the CDCR, as requested by either the 
          Secretary of the CDCR or a Member of the Legislature, 
          pursuant to the approval of the Inspector General under 
          policies to be developed by the Inspector General. The 
          Inspector General may, under policies developed by the 
          Inspector General, initiate an investigation or an audit 
          on his or her own accord.  (Penal Code  6126(a)(1).)

           This bill  would require CDCR to oversee and conduct 
          periodic and random searches of employees and vendors 
          entering the secure perimeter of a state prison under the 
          jurisdiction of the department for contraband. These 
          searches would include random searches of property, 
          personal or otherwise, brought into the prison by those 
          individuals. The department must provide the Inspector 
          General with no less than 24 hours' notice prior to the 
          dates of those random searches the department plans to 
          conduct.

           This bill  would require CDCR to provide a written report to 
          the Legislature and the Inspector General at least monthly 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 4



          detailing the following:

                 The names of the prisons where the searches took 
               place.
                 The dates of the searches.
                 The shifts during which the searches took place.
                 The number of employees searched.
                 The number of vendors searched.
                 The number of cell phones discovered.
                 The number of items of portable computer equipment 
               found, including, but not limited to, iPods, MP3 
               players, DVD players, CD players, CDs, and portable 
               video game players.
                 Tobacco products found.
                 Illegal substances found, listed by type of 
               substance.

          The report shall include a general comment section for use 
          by the Inspector General and the department to discuss the 
          issues they find relevant to the searches and shall include 
          a section detailing the actions taken as a result of the 
          discovery of contraband possessed by an employee or vendor 
          and the results of any disciplinary process resulting from 
          the discovery of contraband.

           This bill  would require the Inspector General to oversee, 
          at a minimum, the CDCR's search of one staff shift per year 
          at each adult institution, in order to ensure the integrity 
          of the process and of the searches, and the accuracy of the 
          reports submitted by CDCR regarding its random searches for 
          contraband, this bill would provide that nothing in its 
          provisions should be interpreted to allow the Inspector 
          General to direct CDCR  regarding when the random searches 
          would take place, how the random searches would be carried 
          out, or as requiring the Inspector General's approval prior 
          to CDCR conducting the random searches.

                  RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 5



          For the last several years, severe overcrowding in 
          California's prisons has been the focus of evolving and 
          expensive litigation.  As these cases have progressed, 
          prison conditions have continued to be assailed, and the 
          scrutiny of the federal courts over California's prisons 
          has intensified.  

          On June 30, 2005, in a class action lawsuit filed four 
          years earlier, the United States District Court for the 
          Northern District of California established a Receivership 
          to take control of the delivery of medical services to all 
          California state prisoners confined by the California 
          Department of Corrections and Rehabilitation ("CDCR").  In 
          December of 2006, plaintiffs in two federal lawsuits 
          against CDCR sought a court-ordered limit on the prison 
          population pursuant to the federal Prison Litigation Reform 
          Act.  On January 12, 2010, a three-judge federal panel 
          issued an order requiring California to reduce its inmate 
          population to 137.5 percent of design capacity -- a 
          reduction at that time of roughly 40,000 inmates -- within 
          two years.  The court stayed implementation of its ruling 
          pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to 
          hear the state's appeal of this order and, on Tuesday, 
          November 30, 2010, the Court heard oral arguments.  A 
          decision is expected as early as this spring.  

          In response to the unresolved prison capacity crisis, in 
          early 2007 the Senate Committee on Public Safety began 
          holding legislative proposals which could further 
          exacerbate prison overcrowding through new or expanded 
          felony prosecutions.     

           This bill  does not appear to aggravate the prison 
          overcrowding crisis described above.


                                    COMMENTS




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 6




          1.  Need for This Bill 

          According to the author:

               The number of cell phones confiscated in prison 
               in 2006 was 261.  Last year, 8,675 cell phones 
               were confiscated.  That constitutes an increase 
               of 3224% percent.  Recent stories in the news 
               report inmates paying $500 to $1500 per phone.

               A 2010 KCRA 3 report quoted Avenal spokesman 
               saying inmates with cell phones "can order hits.  
               They can organize escapes."  An AP story 
               discusses how Mexican drug traffickers call 
               prisons gangs in the United States via cell 
               phones when they "need someone killed or 
               kidnapped or drugs distributed in the United 
               States."  Several news articles 

               The California Senate Rules Committee for the 
               last several years has focused on cell phones 
               entering prisons during the confirmation hearings 
               of California Department of Corrections and 
               Rehabilitation (CDCR) officials.
               In May of 2009, the Office of the Inspector 
               General (OIG) sent a special report entitled 
               "Inmate Cell Phone Use Endangers Prison Security 
               and Public Safety" to CDCR Secretary Matthew 
               Cate. Among other things the report found, 
               "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 activities.  In addition, these devices 
               can provide an inmate unrestricted and 
               unmonitored access to the Internet, whereby they 
               can communicate with unsuspecting victims, 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 7



               including minors."

               The report also found that, "In addition to 
               staff, other conduits for smuggling cell phones 
               include visitors, outside accomplices, minimum 
               support facility inmates working outside 
               perimeter fences, and contracted employees."

               In July of 2008 CDCR's Department of Internal 
               Affairs conducted surprise screenings for two 
               days called "Project Disconnect."  During these 
               searches, one employee's vehicle was searched and 
               fifty cell phones, labeled with the inmates' 
               names, were found.  Since November of 2009, CDCR 
               has continued the random once a month searches of 
               employees entering every prison in California 
               with "Operation Disconnect."

               SB 139 codifies the activities of "Operation 
               Disconnect" into law and includes vendors as 
               those subject to the search.  While cell phones 
               are targeted, SB 139 aims to halt all contraband 
               entering prisons.  SB 139 requires the OIG to 
               oversee the searches to ensure the integrity of 
               the process.  Finally, SB 1066 requires that CDCR 
               and the OIG submit a report to the Legislature 
               detailing the finding of the searches as well as 
               a general comment section.

          2.  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."  
          (http://www.oig.ca.gov/media/reports/BOI/Special%20Report%20
          of%20Inmate%20Cell%20Phone%20Use.pdf)  The report stated: 
           
                According to numerous California Department of 
               Corrections and Rehabilitation (Department) 
               officials, the possession of cell phones and 
               electronic communication devices by California's 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 8



               inmates is one of the most significant problems 
               facing the Department today.  "Therefore, in 
               February 2009, the Office of the Inspector General 
               (OIG) began a review into the proliferation of 
               contraband cell phones in California prisons and 
               how their use puts Department staff, inmates, and 
               the general public at risk.  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.  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.  "Furthermore, current security entrance 
               procedures provide ample opportunities for staff and 
               visitors to bring contraband into prison facilities 
               without fear of discovery.  Therefore, the 
               introduction of cell phones into state prisons is a 
               low-risk, high-reward endeavor.  In addition to staff, 
               other conduits for smuggling cell phones include 
               visitors, outside accomplices, minimum support 
               facility inmates working outside perimeter fences, and 
               contracted employees.  

               In an effort to combat this growing threat, the 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 9



               Department is supporting legislation making it a crime 
               to introduce or possess cell phones in California's 
               prisons.  Unfortunately, previous efforts to pass 
               similar legislation have failed.  In addition, 
               technology that detects or jams cell phone signals is 
               commercially available but potentially expensive and 
               would require federal authorization to place into use. 
                Other detection methods that have been used or are 
               now in sporadic use, such as hands-on searches, metal 
               detectors, and x-ray equipment, are more labor 
               intensive and would require an increase in staffing 
               and funding."

          The report examined CDCR's efforts at interdiction of cell 
          phones entering prisons: 

               In July 2008, the Department's Office of Internal 
               Affairs (OIA), in coordination with prison 
               investigative staff, executed a two-day surprise 
               operation dubbed "Project Disconnect." OIA agents and 
               institutional staff conducted systematic searches of 
               prison housing facilities of inmates suspected to 
               possess cell phones. Prior to the two-day operation, 
               OIA agents obtained confidential information of 
               employees believed to be involved in smuggling cell 
               phones to inmates. In addition, employees who acted 
               suspiciously during the operation were stopped, 
               questioned, and searched. One employee's vehicle was 
               searched and fifty cell phones, labeled with inmates' 
               names, were seized.

               In order for this methodology to be an effective tool, 
               the Department would have to employ enhanced security 
               detection devices and manual searches, similar to 
               those used at airports. Facility staff, contracted 
               employees, and visitors would be required to remove 
               their shoes, slide all their personal items through an 
               x-ray machine, walk through a metal detector, and if 
               necessary, submit to pat-down searches. Department 




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 10



               management and investigative staff said this detection 
               system is needed at points of entry to all facilities. 
                According to the Department, this procedure would 
               require additional staff. The Department has 
               determined this security screening measure will cost 
               approximately $28,000 at each entry point plus the 
               cost of additional correctional staff to monitor the 
               equipment and perform the searches.

          Currently in California, while all visitors at any CDCR 
          facility are screened through metal detectors, employees, 
          correctional officers, non-sworn staff and contractors, are 
          not.  This stands in contrast to the practice of the 
          Federal Bureau of Prisons.  The OIG report states:

               The federal Bureau of Prisons is also experiencing a 
               rise in employees and visitors smuggling cell phones. 
               To combat this activity they have implemented 
               airport-style metal detection screening systems at all 
               of their facilities. They now require all staff and 
               visitors to remove their shoes, belts, and any 
               metallic objects from their persons.  Belongings are 
               scanned and viewed through an x-ray machine and 
               everyone must walk through a metal detector. This 
               screening process requires three correctional officers 
               and a supervisor during each shift change.

               After some initial resistance from the correctional 
               worker's union, the federal Bureau of Prisons overcame 
               the opposition through negotiations pertaining to 
               institutional polices and procedural changes. Once 
               staff grew accustomed to the new entry screening 
               process, the added time it took them to report to 
               their workstations was minimized. Even though the 
               federal Bureau of Prisons does not keep statistics on 
               the number of cell phones seized in their prisons, 
               they believe the screening process has been a good 
               deterrent.





                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 11



          The OIG report concludes:

            The dramatic rise in cell phones confiscated by 
            Department staff is a clear indicator that the current 
            methods used by the Department to interdict the 
            introduction of cell phones are ineffective. To truly 
            eradicate cell phone usage the Office of the Inspector 
            General recommends that the Secretary of the Department 
            take the following actions:

                     Continue efforts to seek legislative change to 
                 make the introduction or possession of cell phones 
                 in all correctional facilities a criminal offense;
                     Collaborate with other state and federal 
                 correctional agencies to lobby the Federal 
                 Communications Commission (FCC) for an exemption in 
                 using cell phone jamming devices;
                     Request additional funds to purchase cell phone 
                 detection solutions and jamming devices (if 
                 subsequently approved by the FCC);
                     Request resources and funds to conduct 
                 airport-style screening including metal and canine 
                 detection, and when necessary, manual searches of 
                 persons entering California prison facilities;
                     Restrict the size of all carrying cases being 
                 brought into the secure areas of prisons by all 
                 persons including backpacks, briefcases, purses, ice 
                 chests, lunch boxes, file boxes, etc., so that they 
                 may be x-rayed;
                     Require staff and visitors to place all 
                 personal items in see-through plastic containers;
                     Request additional resources and funds to 
                 increase detection activities similar to "Operation 
                 Disconnect;"
                     Ensure all quarterly contract vendor packages 
                 be shipped directly to prisons and correctional 
                 camps; and
                     Implement an anonymous cell phone smuggling 
                 reporting system for employees and inmates.




                                                                (More)






                                                      SB 139 (Alquist)
                                                                Page 12




          ARE THE RANDOM SEARCHES OF CDCR EMPLOYEES AND VENDORS 
          CONSISTENT WITH THE RECOMMENDATIONS OF THE OIG?

          3.  How Cell Phones are Getting into Prisons  

          On June 27, 2007, the Senate Rules Committee held 
          confirmation hearings for then-CDCR Secretary James Tilton 
          and Undersecretary Kingston "Bud" Prunty.  At that hearing 
          Committee member Senator Padilla asked Secretary Tilton to 
          respond to a letter he had Secretary Tilton send earlier 
          regarding the problem of cell phones in prisons.  Mr. 
          Tilton stated:

              It's a significant problem, and not just in 
              California, but around the nation.  I spent last 
              weekend with my peers from around the country, and 
              that was one of our topics there.

              We have one institution, for example, down in 
              Solano that we have . . . I just looked at a 
              period of . . . I can't remember the period, but 
                  we had over 600 phones that we found, over 300 of 
              those were at Solano.

              Now we need to track what's bringing them in, 
              whether it's visitors or staff.  But I do know in 
              that institution we caught staff bringing them in.

          Senator Padilla questioned Undersecretary Prunty on the 
          source of contraband cell phones:












                                                                (More)











              SENATOR PADILLA:  And so again, the question I 
              asked a minute ago, do we have a sense yet for how 
              much it varies from facility to facility as to 
              whether it's the personnel bringing the phones 
              into the prison, or it's visitors bringing the 
              cell phones into the prison?

              MR. PRUNTY:  I cannot tell you how many can be 
              attributed to visitors.  I don't . . . we haven't 
              been (able) to determine that yet.

              We do know of the ones we were able to 
              investigate, the majority were brought in by 
              staff.

          HOW ARE CELL PHONES GETTING INTO PRISONS?

          WILL RANDOM SEARCHES OF CDCR STAFF AND VENDORS HELP KEEP 
          CELL PHONES OUT OF PRISONS?
























                                                                (More)











          4.  Author's Amendment  

          To be consistent with SB 490 (Hancock), which is scheduled to be 
          heard on the same day as this bill, the author has proposed to 
          delete Section 2 of the bill, the requirement that the OIG 
          oversee the CDCR searches, and replace that section with the 
          following language:

               The Inspector General, or its successor may oversee, 
               at a minimum, the department's search of one staff 
               shift per year at each adult institution, in order to 
               ensure the integrity of the process and of the 
               searches, and the accuracy of the reports submitted 
               pursuant to Section 5040. Nothing in this paragraph 
               shall be interpreted to allow the Inspector General to 
               direct the department regarding when the random 
               searches shall take place, to allow the Inspector 
               General to direct the department regarding how the 
               random searches shall be carried out, or as requiring 
               the Inspector General's approval prior to the 
               department conducting the random searches.

          SHOULD THIS AMENDMENT BE TAKEN?

                                   ***************


















                                                                (More)