BILL ANALYSIS �
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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