BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 771 (Galgiani)                                           
          As Amended April 1, 2013 
          Hearing date:  April 23, 2013
          Penal Code (URGENCY)
          AA:jr


                             TRANSFER OF STATE PRISONERS:

                      GATHERING OF EVIDENCE RELATING TO A CRIME

                                           
                                       HISTORY

          Source:  Author

          Prior Legislation: AB 2357 (Galgiani) Ch. 145, Statutes of 2012

          Support: Crime Victims Action Alliance

          Opposition:California Attorneys for Criminal Justice
           


                                         KEY ISSUE
           
          SHOULD THE SECRETARY OF CORRECTIONS BE EXPRESSLY AUTHORIZED IN  
          STATUTE TO ALLOW THE TEMPORARY REMOVAL OF A PRISON INMATE FOR  
          PURPOSES RELATED TO THE GATHERING OF EVIDENCE RELATING TO A CRIME?



                                       PURPOSE




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          The purpose of this bill is to expressly state in statute, until  
          January 1, 2014, that one of the reasons the Secretary of the  
          Department of Corrections and Rehabilitation can order a state  
          prisoner temporarily removed from a state prison is for the  
          inmate to participate in or assist with the gathering of  
          evidence relating to crimes, as specified.  

           Current law  provides that the Secretary of the Department of  
          Corrections and Rehabilitation ("CDCR") may authorize the  
          temporary removal of any inmate from prison or any other  
          institution for the detention of adults under the jurisdiction  
          of CDCR, including removal for the purpose of attending college  
          classes. The secretary may require that the temporary removal be  
          under custody. Unless the inmate is removed for medical  
          treatment, the removal shall not be for a period longer than  
          three days. The secretary may require the inmate to reimburse  
          the state, in whole or in part, for expenses incurred by the  
          state in connection with the temporary removal other than for  
          medical treatment. (Penal Code § 2690.)
           
          This bill  would revise this statute to expressly include  
          permitting the inmate to participate in or assist with the  
          gathering of evidence relating to crimes.

           This bill  would provide that the section's existing provision  
          concerning the inmate's reimbursement to the state would not  
          apply to cases when the removal is for medical treatment or to  
          assist with the gathering of evidence related to crimes.

           This bill  would provide that these provisions would go into  
          effect as an urgency measure, and would sunset on January 1,  
          2014.
                                          
          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  




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          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  







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          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


                                      COMMENTS

          1.  Stated Need for This Bill

           The author states:

               In January of 2012, Senator Galgiani notified the  
               California Department of Corrections and  
               Rehabilitation (CDCR) Administration that death row  
               inmate Wesley Shermantine was revealing new  




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               information which might lead to the recovery of murder  
               victims in San Joaquin and Calaveras Counties.  At the  
               time, there was a lack of clarity as to whether the  
               CDCR had statutory authority to initiate the recovery  
               effort by permitting the temporary removal from prison  
               of the inmate to identify possible burial sites which  
               then would be searched and excavated by the FBI  
               Evidence Response Team.  Senate Bill 771 makes it  
               explicitly clear that the California Department of  
               Corrections and Rehabilitation has the statutory  
               authority to temporarily remove an inmate for purposes  
               of assisting in a search and recovery effort in order  
               to identify possible murder victims and gather other  
               such evidence. 

               This bill will temporarily extend the grant of  
               authority given to the Secretary of CDCR in last  
               year's chaptered bill AB 2357, to address this unique  
               local issue in SD 5.  

          2.  Effect of This Bill
           
          This bill is an urgency bill that would reinstate the provisions  
          of the author's AB 2357 from last session concerning the  
          temporary removal of state prison inmates to local custody for  
          purposes relating to evidence gathering.  The provisions of AB  
          2357 sunseted on January 1 of this year.   The provisions of  
          this bill would sunset on January 1 of next year.

          3.  Related Legislation

           SB 162 (Lieu), which is scheduled to be heard the same day as  
          this bill, also pertains to the temporary removal of state  
          prison inmates to local custody for purposes relating to  
          evidence gathering.  That bill would establish statutory  
          authority for a superior court to issue an inmate transfer order  
          upon the request of a district attorney or peace officer "if a  
          legitimate law enforcement purpose exists to move the prisoner."  
           




                                                                           







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