BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 139
                                                                  Page  1

          Date of Hearing:   June 21, 2011
          Counsel:        Milena Nelson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 139 (Alquist) - As Amended:  May 24, 2011
                       As Proposed to be Amended in Committee


           SUMMARY  :   Requires the California 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 for contraband.  Specifically,  this bill  :   

          1)Specifies that these searches shall include random searches of 
            property, personal or otherwise, brought into the prison by 
            those individuals.  

          2)Requires CDCR to provide notification to the Inspector General 
            (IG) no less than five days before the date of the random 
            searches CDCR plans to conduct. 

          3)Specifies that the searches shall be conducted at each 
            institution at least once per month.  

          4)Specifies that the Secretary of CDCR may cancel a search at an 
            institution in a given month provided that for each search not 
            conducted at an institution in a month, an additional search 
            must be conducted an another institution within the same 
            month, and no institution may go more than three months 
            without a search.  

          5)Requires CDCR to provide a written report to the Legislature 
            and the IG at least quarterly detailing 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, MP# players, DVD players, CD players, CDs, and 
            portable video game players; tobacco products found, and 
            illegal substances found, listed by type of substance.  









                                                                  SB 139
                                                                  Page  2

          6)States that the report shall include a general comments 
            section for use by the IG and CDCR 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.  

          7)Requires the IG to oversee at least one of CDCR's staff shift 
            searches per year at each adult institution to ensure the 
            integrity of the process and of the searches, and the accuracy 
            of the reports submitted.  This requirement is not to be 
            interpreted to allow the Inspector General to direct the 
            department regarding when the random searches are to take 
            place, how they are carried out, or to require the Inspector 
            General's approval prior to conducting the random searches.  

           EXISTING LAW  :

          1)Mandates that the IG shall review CDCR 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 CDCR, as requested by either the CDCR 
            Secretary or a Member of the Legislature, pursuant to the 
            approval of the IG under policies to be developed by the IG.  
            The IG may, under policies developed by the IG, initiate an 
            investigation or an audit on his or her own accord. ›Penal 
            Code Section 6126(a)(1).]

          2)States that any person who knowingly brings into any state 
            prison or other institution under the jurisdiction of CDCR, or 
            into any prison camp, prison farm, or any other place where 
            prisoners or inmates of these institutions are located under 
            the custody of prison or institution officials, officers, or 
            employees, or into any county, city and county, or city jail, 
            road camp, farm or any other institution or place where 
            prisoners or inmates are being held under the custody of any 
            sheriff, chief of police, peace officer, probation officer, or 
            employees, or within the grounds belonging to any institution 
            or place, any alcoholic beverage, any drugs, other than 
            controlled substances, in any manner, shape, form, dispenser, 
            or container, or any device, contrivance, instrument, or 
            paraphernalia intended to be used for unlawfully injecting or 
            consuming any drug other than controlled substances, without 
            having authority so to do by the rules of CDCR, the rules of 
            the prison, institution, camp, farm, place, or jail, or by the 








                                                                  SB 139
                                                                  Page  3

            specific authorization of the warden, superintendent, jailer, 
            or other person in charge of the prison, jail, institution, 
            camp, farm, or place, is guilty of a felony.  ›Penal Code 
            Section 4573.5.]

          3)States any person in a local correctional facility who 
            possesses a wireless communication device, including, but not 
            limited to, a cellular telephone, pager, or wireless Internet 
            device, who is not authorized to possess that item is guilty 
            of a misdemeanor, punishable by a fine of not more than 
            $1,000.  ›Penal Code Section 4575(a).]

          4)Provides any person housed in a local correctional facility 
            that possesses any tobacco products in any form, including 
            snuff products, smoking paraphernalia, any device that is 
            intended to be used for ingesting or consuming tobacco, or any 
            container or dispenser used for any of those products, is 
            guilty of an infraction, punishable by a fine not exceeding 
            $250.  Money collected pursuant to this section shall be 
            placed into the inmate welfare fund, as specified.  ›Penal 
            Code Section 4575(b) and (c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :   According to the author, "The number of 
            cell phones confiscated in prison in 2006 was 261.  Last year, 
            10,761 cell phones were confiscated.  That constitutes an 
            increase of 4023% 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.'

          "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 








                                                                  SB 139
                                                                  Page  4

            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, including minors.'

          "The report also found that, 'In addition to staff, other 
            conduits for smuggling cell phones include visitor, 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 allows the OIG to oversee 
            the searches to ensure the integrity of the process.  Finally, 
            SB 139 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)OIG Report  :  In May 2009, the OIG published a report, "Inmate 
            Cell Phone Use Endangers Prison Security and Public Safety".  
            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 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 








                                                                  SB 139
                                                                  Page  5

            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 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 OIG made several recommendations in its report to ameliorate 
            the harm caused by the proliferation of cell phones in prisons 
            and found "the dramatic rise in cell phones confiscated by 
            CDCR staff is a clear indicator that the current methods used 
            to interdict the introduction of cell phones are ineffective.









                                                                  SB 139
                                                                  Page  6

          "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."

           3)Previous Legislation  :

             a)   SB 1066 (Oropeza), of the 2009-10 Legislation Session, 
               was substantially similar to this bill.  SB 1066 was 
               vetoed.  In his veto message, Governor Schwarzenegger 
               stated, "This measure is unnecessary as California law 
               already authorizes CDCR to search staff and vendors and 
               provides the necessary flexibility needed to conduct its 
               operations within existing budget constraints. SB 1066 
               removes this flexibility and instead codifies a cumbersome, 
               bureaucratic process that will impede the Department's 
               current and future efforts.  Moreover, I cannot approve a 
               measure that will mandate such searches while the 
               Legislature fails to approve laws to give the proper tools 
               to law enforcement to prosecute individuals when contraband 
               such as wireless communications devices are found."

             b)   SB 268 (Harman), of the 2009-10 Legislation Session, 
               creates a misdemeanor for the possession of a cellular 
               telephone device or wireless communication device with the 








                                                                 SB 139
                                                                  Page  7

               intent to deliver that device to an inmate or ward in 
               CDCR's custody.  SB 268 was not heard by this committee. 

             c)   SB 434 (Benoit), of the 2009-10 Legislation Session, 
               states any inmate or ward who possesses any cellular 
               telephone or other wireless communication device, or any 
               component thereof, including, but not limited to, 
               subscriber identity module (SIM) cards and memory storage 
               devices, or any 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 component, including, but not 
               limited to, SIM cards and memory storage devices, is guilty 
               of a misdemeanor, punishable by a fine not to exceed 
               $5,000.  SB 434 was held on the Assembly Committee on 
               Appropriations' Suspense File.  

             d)   SB 525 (Padilla), of the 2009-10 Legislation Session, 
               creates a misdemeanor for the possession of a cellular 
               telephone device or wireless communication device with the 
               intent to deliver that device to an inmate or ward in 
               CDCR's custody.  SB 525 was vetoed.  In his veto message, 
               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 to pass this 
               commonsense measure.









                                                                  SB 139
                                                                  Page  8

             "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."

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California District Attorneys Association
          Friends Committee on Legislation
          Life Support Alliance
           
            Opposition 
           
          None


           Analysis Prepared by  :    Milena Nelson / PUB. S. / (916) 
          319-3744