BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 7 7 1 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 (More) SB 771 (Galgiani) Page 2 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 (More) SB 771 (Galgiani) Page 3 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. (More) 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 (More) SB 771 (Galgiani) Page 5 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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