BILL ANALYSIS Ķ
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 759 Hearing Date: April 28, 2015
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|Author: |Anderson |
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|Version: |April 14, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Prisoners: Secured Housing Units
HISTORY
Source: Friends Committee on Legislation of California
Prior Legislation:SB 892 (Hancock)-2014, died on Assembly Floor
Support: American Friends Service Committee; California
Attorneys for Criminal Justice; California Public
Defenders Association; Californians United for a
Responsible Budget; Ella Baker Center for Human
Rights; Legal Services for Prisoners with Children;
National Religious Campaign Against Torture; Youth
Justice Coalition
Opposition:None known
PURPOSE
The purpose of this legislation is to ensure accountability and
transparency in the use of solitary confinement in California,
as specified.
Current law creates in state government the California
Department of Corrections and Rehabilitation (CDCR), to be
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headed by a secretary, who shall be appointed by the Governor,
subject to Senate confirmation, and shall serve at the pleasure
of the Governor. (Government Code § 12838.) CDCR shall consist
of Adult Operations, Adult Programs, Health Care Services,
Juvenile Justice, the Board of Parole Hearings, the State
Commission on Juvenile Justice, the Prison Industry Authority,
and the Prison Industry Board. (Id.) As explained in the
Legislative Analyst's Office Analysis of the Governor's 2015-16
Proposed Budget:
The CDCR is responsible for the incarceration of adult felons,
including the provision of training, education, and health care
services. As of February 4, 2015, CDCR housed about 132,000
adult inmates in the state's prison system. Most of these
inmates are housed in the state's 34 prisons and 43 conservation
camps. About 15,000 inmates are housed in either in-state or
out-of-state contracted prisons. The department also supervises
and treats about 44,000 adult parolees and is responsible for
the apprehension of those parolees who commit new offenses or
parole violations. In addition, about 700 juvenile offenders
are housed in facilities operated by CDCR's Division of Juvenile
Justice, which includes three facilities and one conservation
camp.
The Governor's budget proposes total expenditures of $10.3
billion ($10 billion General Fund) for CDCR operations in
2015-16.
Current regulations allow CDCR to place an inmate in the SHU if
the inmate has been deemed a threat to the safety of others or
the security of the institution. (15 CCR 3341.5.) Under
existing regulations, inmates can be assigned to the Security
Housing Unit (SHU) for a determinate or indeterminate term.
(Id.) An inmate who has been validated as a gang member can be
placed in the SHU for an indeterminate term. (Id.)
Data Collection
Current law creates the independent Office of the Inspector
General (OIG). (Penal Code § 6125.) The Inspector General is
responsible for contemporaneous oversight of internal affairs
investigations and the disciplinary process of the Department of
Corrections and Rehabilitation. (Penal Code § 6126.)
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This bill would require CDCR to collect a variety of data
relating to the security threat group validation process and the
SHU, as specified.
This bill would require, beginning January 1, 2018, the OIG to
prepare a biennial report utilizing the information collected by
CDCR, as specified.
Credit Earning
Under existing law a person who is placed in a Security Housing
Unit, Psychiatric Services Unit, Behavioral Management Unit, or
an Administrative Segregation Unit for misconduct described in
subdivision (b) or upon validation as a prison gang member or
associate is ineligible to earn credits pursuant to Section 2933
or 2933.05 during the time he or she is in the Security Housing
Unit, Psychiatric Services Unit, Behavioral Management Unit, or
the Administrative Segregation Unit for that misconduct, as
specified. (Penal Code § 2933.6.)
This bill would repeal those provisions and instead authorize
CDCR to establish regulations to allow specified inmates placed
in a Security Housing Unit, Psychiatric Services Unit,
Behavioral Management Unit, or an Administrative Segregation
Unit to earn credits during the time he or she is in the
Security Housing Unit, Psychiatric Services Unit, Behavioral
Management Unit, or the Administrative Segregation Unit.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
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reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need for This Legislation
According to the Author:
Good government starts with good information. Governor
Brown is requesting over $10 billion for corrections in
2015-2016. Lawmakers can only make prudent budget
decisions when they have the necessary information. SB
759 is a modest step toward accountability and
transparency that will give the Legislature the data it
needs to exercise sound oversight over CDCR.
2. Solitary Confinement: The National Discussion
In recent years, solitary confinement practices in the United
States have come under increased scrutiny, which has resulted in
a movement to significantly limit its use.
On June 19, 2012, Senator Dick Durbin chaired the first
Congressional hearing on solitary confinement. (First
Congressional Hearing on Solitary Confinement to Be Held June
19, James
Ridgeway and Jean Casella, June 8, 2012.
http://solitarywatch.com/2012/06/08/first-congressional-hearing-o
n-solitary-confinement-to-be-held-june-19/) The hearing
focused on the human rights, fiscal and public safety
consequences of solitary confinement in U.S. prisons, jails, and
detention centers. (Id.) The hearing also explored the
psychological and psychiatric impact on inmates during and after
their imprisonment, the higher costs of running solitary housing
units, the human rights issues surrounding the use of isolation,
and successful state reforms in this area. (Id.)
In February of last year, these psychological effects were
experienced firsthand by the Executive Director of Colorado's
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Department of Corrections, Rick Raemisch. Raemisch recounts:
I was delivered to a Colorado state penitentiary,
where I was issued an inmate uniform and a mesh bag
with my toiletries and bedding. My arms were
handcuffed behind my back, my legs were shackled and I
was deposited in Administrative Segregation - solitary
confinement.
I hadn't committed a crime. Instead, as the new head
of the state's corrections department, I wanted to
learn more about what we call Ad Seg.
Most states now agree that solitary confinement is
overused, and many - like New York, which just agreed
to a powerful set of reforms this week - are beginning
to act. When I was appointed, Gov. John Hickenlooper
charged me with three goals: limiting or eliminating
the use of solitary confinement for mentally ill
inmates; addressing the needs of those who have been
in solitary for long periods; and reducing the number
of offenders released directly from solitary back into
their communities. If I was going to accomplish
these, I needed a better sense of what solitary
confinement was like, and what it did to the prisoners
who were housed there, sometimes for years.
My cell, No. 22, was on the second floor, at the end
of what seemed like a very long walk. At the cell,
the officers removed my shackles. The door closed and
the feed tray door opened. I was told to put my hands
through it so the cuffs could be removed. And then I
was alone - classified as an R.F.P., or "Removed From
Population."
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In regular Ad Seg, inmates can have books or TVs. But
in R.F.P. Ad Seg, no personal property is allowed.
The room is about 7 by 13 feet. What little there is
inside - bed, toilet, sink - is steel and screwed to
the floor.
First thing you notice is that it's anything but
quiet. You're immersed in a drone of garbled noise -
other inmates' blaring TVs, distant conversations,
shouted arguments. I couldn't make sense of any of
it, and was left feeling twitchy and paranoid. I kept
waiting for the lights to turn off, to signal the end
of the day. But the lights did not shut off. I began
to count the small holes carved in the walls. Tiny
grooves made by inmates who'd chipped away at the cell
as the cell chipped away at them.
For a sound mind, those are daunting circumstances.
But every prison in America has become a dumping
ground for the mentally ill, and often the "worst of
the worst" - some of society's most unsound minds -
are dumped in Ad Seg.
If an inmate acts up, we slam a steel door on him. Ad
Seg allows a prison to run more efficiently for a
period of time, but by placing a difficult offender in
isolation you have not solved the problem - only
delayed or more likely exacerbated it, not only for
the prison, but ultimately for the public. Our job in
corrections is to protect the community, not to
release people who are worse than they were when they
came in.
(My Night in Solitary, Rick Raemisch, New York Times, February
20, 2014.
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http://www.nytimes.com/2014/02/21/opinion/my-night-in-solitary.ht
ml)
David Brooks, New York Times Op-Ed columnist, echoed the notion
that the use of solitary confinement should be reduced. He
wrote, in part:
We don't flog people in our prison system, or put them
in thumbscrews or stretch them on the rack. We do,
however, lock prisoners away in social isolation for
23 hours a day, often for months, years or decades at
a time.
We prohibit the former and permit the latter because
we make a distinction between physical and social
pain. But, at the level of the brain where pain
really resides, this is a distinction without a
difference. Matthew Lieberman of the University of
California, Los Angeles, compared the brain activities
of people suffering physical pain with people
suffering from social pain. As he writes in his book,
"Social," "Looking at the screens side by side ... you
wouldn't have been able to tell the difference."
The brain processes both kinds of pain in similar
ways. Moreover, at the level of human experience,
social pain is, if anything, more traumatic, more
destabilizing and inflicts more cruel and long-lasting
effects than physical pain. What we're doing to
prisoners in extreme isolation, in other words, is
arguably more inhumane than flogging.
Yet inflicting extreme social pain is more or less
standard procedure in America's prisons. Something
like 80,000 prisoners are put in solitary confinement
every year. Prisoners isolated in super maximum
facilities are often locked away in a 6-by-9-foot or
8-by-10-foot barren room. They may be completely
isolated in that room for two days a week. For the
remaining five, they may be locked away for 23 hours a
day and permitted an hour of solitary exercise in a
fenced-in area.
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(The Archipelago of Pain, David Brooks, New York Times, March 6,
2014.
http://www.nytimes.com/2014/03/07/opinion/brooks-the-archipelago-
of-pain.html?_r=0)
On March 23, 2015, Supreme Court Justice Anthony Kennedy stated
during a budget hearing:
California, my home state, had 187,000 people in jail
at a cost of over $30,000 a prisoner. Compare the
amount they gave to school children; it was about 3500
a year. Now, this is 24-hour care and so this is
apples and oranges in a way. And this idea of total
incarceration just isn't working. And it's not
humane. The federal government built -- what do they
call them -- super max prisons with isolation cells.
Prisoners, we had a case come before our court a few
weeks ago. The
prisoner had been in an isolation cell, according to
the attorney. I haven't checked it out. For 25
years. Solitary confinement literally drives men mad.
Even Dr. Minett had his cobbler's tools and he lost
his mind. We have to simply look at the system we
have. The Europeans have systems for difficult rekal
strant prisoners in which they have them in a group of
three or four. And they can stay together for three
and four. And they have human contact. And it seems
to work -- it seems to work much better.
(http://www.c-span.org/video/?324970-1/supreme-court-budget-
fiscal-year-2016; the transcript for this program was
compiled from uncorrected Closed Captioning.)
3. California Legislature's Joint Informational Hearings on
Solitary Confinement
On October 9, 2013, the Assembly and Senate Public Safety
Committees held an informational hearing on California's prison
segregation policies. The committees heard from representatives
from CDCR and the OIG, experts, advocates and even individuals
who had been housed in the SHU. Among the experts was Margaret
Winter, the head of the ACLU prison project, she:
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[T]old lawmakers the tide is turning nationally when
it comes to use of isolation in prisons.
"Every reputable study has found negative effects,"
Winter said, noting that when she helped the
Mississippi Department of Corrections reduce its use
of isolation, prison violence actually went down.
Asked for alternative methods for dealing with inmates
who pose a danger to other inmates or staff, Winter
said segregation can be an effective short-term tool,
if paired with incentives to change behavior. Most
prison systems simply let inmates languish in
isolation without even determining if they're still a
threat, Winter said.
(Legislators Hear Testimony on California Prison Conditions in
Isolation, Rina Palta, Southern California Public Radio, October
9, 2013.
http://www.scpr.org/news/2013/10/09/39735/ca-legislature-to-hold-
hearing-on-conditions-in-pr/.)
On February 11, 2014, another joint informational hearing was
held to discuss CDCR's new Security Threat Group Policy
(discussed below) and the impact that the policy has had on the
SHU population. Committee members heard from CDCR
representatives, experts and attorneys who represent SHU
inmates. Hope Metcalf, Associate Research Scholar in Law,
Director of Arthur Liman Program, and Lecturer in Law, Yale Law
School, stated in the hearing:
[T]he basic bottom line is that staff and inmates must
feel safe and prisons do need tools to shape behavior.
I don't think that there's much dispute about that.
And in fact, some forms of short-term segregation may
be necessary and there may indeed be some portions of
the population for whom placement in the general
population is not appropriate. However, that does not
translate in any sense to the fact that long-term
isolation of the ilk that we see at Pelican Bay is in
fact serving sound, public policy.
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So given the overreliance on isolation, many prisons
are at best delaying problems, and, in fact, may be
aggravating them. So I do not wish to say that most
people released from long-term isolation are
dangerous. I have many, many clients who have left
isolation and they have gone on to do well. However,
I do think that if we're talking about public safety,
thinking about outcomes, including recidivism is
important. Equally important of course in terms of
outcomes is not just whether or not someone is
violent, but whether they are able to flourish and
become independent once they leave. So the fear
is-one fear I've had-is even where outcomes don't show
for example violence, is that person able to hold a
job or are they now so debilitated that they are
reduced to relying on state support once they leave
prison?
(California Department of Corrections and Rehabilitation's
Proposed New Policies on Inmate Segregation: The Promise and
Imperative of Real Reform, Hearing Transcript, Assembly and
Senate Public Safety Committees Joint Informational Hearing,
February 11, 2014.
http://spsf.senate.ca.gov/sites/spsf.senate.ca.gov/files/Jt.%20He
aring%20Transcript%202-11-14.pdf.)
These hearings highlighted the fact that, while short term
segregation is an important tool, long term segregation can have
a detrimental impact on not only the inmates but also on public
safety.
4. CDCR Security Threat Group Policies
On July 1, 2011, inmates in the Pelican Bay State Prison's
Security Housing Unit initiated a hunger strike. (Background:
Hunger Strike in California Prisons, California Department of
Corrections and Rehabilitation, October 2013.
http://cdcr.ca.gov/stg/docs/Fact%20Sheet-hunger%20strikes%20in%20
CA%20prisons.pdf). Approximately 5,300 inmates began refusing
state-issued meals. The number of inmates peaked at more than
6,500 two days later and then gradually decreased until the
strike concluded on July 20, 2011. (Id.)
In September 2011, a second hunger strike began. After three
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days, 4,252 inmates had missed nine consecutive meals.<1> By
October 13, 2011, the number of inmates participating had
dropped to 580. CDCR officials in Sacramento were contacted by
Pelican Bay State Prison inmates by letter and agreed to meet
with inmate representatives to discuss CDCR's ongoing review of
and revisions to its SHU policies. All inmates had resumed
eating by Sunday, October 16, 2011. (Id.)
A third hunger strike began on July 8, 2013, when more than
30,000 inmates refused to eat state-issued food until the SHU
polices were changed. By July 11, 2013, 12,421 inmates had
missed nine consecutive meals. By September 4, 2013, there were
100 inmates on a hunger strike; 40 of them had been on a hunger
strike continuously since July 8. All inmates resumed eating on
September 5, 2013. (Id.)
Last year CDCR updated its Security Threat Group policies.
(http://www.cdcr.ca.gov/
Regulations/Adult_Operations/Pending_Rules_Page.html#STG.)
These policies include, in part:
Security Threat Groups
The new policy replaces the word "gang" with
the more nationally accepted term "security threat
group." The Security Threat Group (STG) program
does not take a "one size fits all approach," but
better identifies, assesses and prioritizes
security threat groups (prison gangs, street
gangs, disruptive groups) based on behavior and on
the level of threat the group and its affiliates
present to the safety and security of prisons and
the public.
CDCR categorizes criminal gangs into STGs
based on a threat assessment conducted by the
department's Office of Correctional Safety. STG
behavior is defined as documented behavior that
promotes, furthers or assists a security threat
group.
---------------------
<1> CDCR considers an inmate to be on hunger strike if he or she
misses nine consecutive meals.
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An STG-I designation is used for criminal
gangs that pose a greater threat. It includes
traditional prison gangs and disruptive groups
with a history of violence or influence over
subservient groups. These STG groups include, but
may not be limited to, traditional prison gangs
like the Aryan Brotherhood, the Black Guerilla
Family, the Mexican Mafia, the Nazi Low Riders,
the Northern Structure, and the Nuestra Familia.
An STG-I
designation may also include a gang with a history
and propensity for violence and/or influence over
subservient STGs. CDCR will review STG-I
designations at least every two years.
An STG-II designation may be used for
traditional disruptive groups and street gangs.
These can include the Crips, the Bloods, the 2-5s,
the Northern Riders, MS 13, the Norteņos, the
Sureņos, Florencia 13 and white supremacist
groups.
Validation
The validation process is a strategy for
identifying and documenting criminal gang member,
associates and suspects.
STG associates - the majority of inmates
housed in SHUs - are no longer placed in a SHU
based solely upon their validation to an STG unless
there is a nexus to confirmed gang activity.
CDCR added an objective point-based component
in the offender validation process and enhanced
considerations of due process. Each source item is
now given a weighted point value between two and
seven points, and individual validation must
include three independent sources with a cumulative
total of 10 points or more.
Unsubstantiated confidential information from
a single source will not establish a foundation for
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confirming the existence of STG-related behavior.
Step-Down Program
The Step-Down Program enables an inmate
serving an indeterminate SHU term to ultimately
earn his way back to a general population or
sensitive needs yard. The revised policy reduces
the six-year inactive review policy for release to
a general population to a four-year program.
Additionally, inmates demonstrating positive
behavior and participation may have their length of
participation further reduced to three years.
The Step-Down Program is an incentive-based,
multi-step process for STG offenders who choose to
discontinue criminal and/or gang activity.
Offenders can always choose to drop out of a gang;
however, in the Step-Down Program, inmates are not
required to drop out of their gang.
The five-step program supports, educates and
increases privileges for SHU inmates who refrain
from gang behavior and are disciplinary-free. Each
step is progressive and requires the willingness of
the inmate to participate. Each offender is
responsible for demonstrating he can be released to
a less restrictive environment while abstaining
from criminal behavior.
In the fifth step, inmates are observed and
monitored in a general population facility.
(Security Threat Group Prevention, Identification and Management
Strategy, California Department of Corrections and
Rehabilitation, October 2013. http://www.cdcr.ca.gov/stg/
docs/Fact-Sheet-STG-reforms.pdf)
The Office of the Inspector General recently reviewed CDCR's
Step-Down Program:
The new gang management policy requires an offender in
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step 1 through 4 to participate in inmate programming
or journaling before progressing to the next step.
Inmates placed in steps 1 and 2 are to have program
assessments initiated, such as TABE (Test of Adult
Basic Education) and COMPAS assessments. Inmates
placed in step 3 can participate in self-directed
journals that are intended to develop a system of
values and strategies leading to responsible thinking
and behavior. Step 4 inmates may have programming that
includes education, violence prevention programs, and
gang diversion programs. If an inmate refuses to
participate in the SDP, including inmate programming
or journaling, the inmate will return to a previous
step or regress further.
The OIG's fieldwork reviewed the current status of 65
inmates who were assigned to the SDP (steps 1 through
4) for at least 12 months to identify the result of
the ICC review.20,21. As summarized on the next page,
the OIG found that 31 of the 65 inmates (48 percent)
successfully progressed to the next step; 27 inmates
(41 percent) were retained in their current step; and
7 inmates (11 percent) had regressed to a prior step.
The percentage of inmates who progressed (48 percent)
based on active participation in the SDP remained
stable; it decreased by only 1 percent since the last
OIG report. The inmates retained in their current
step increased by 14 percent, while the inmates who
regressed decreased by 11 percent from the last OIG
report. As shown in the preceding diagram, the OIG
found that 27 of the 34 inmates (79 percent) from the
"retain" and "regress" categories refused to
participate in the SDP. For the inmates who were
unable to progress, it was due to "refusing to
participate" (27 inmates), "other reasons" (four
inmates), and "will not participate in journaling"
(three inmates, one each from steps 1, 2, and 3). The
"other reasons" typically involved inmates who were
indecisive on choosing to participate, which caused
more assessment time before an ICC decision was made.
. .
. . .[T]he OIG's fieldwork noted an increasing
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percentage of inmates progressing (or transitioning)
to the next step as they move closer to being released
to general population (step 5). The OIG found seven
of the eight inmates reviewed were initially assigned
to step 4 at California Correctional Institution and
all progressed to the next step. Also, over half (54
percent) of the inmates assigned to step 3 were able
to progress to step 4. Each inmate in the SDP is
assigned ratings in various categories during the
annual program review or ICC reviews (at 90 or 180
days). Most inmates who progressed received the
highest rating of "exceptional" in the following
categories: "attitude toward staff," "attitude toward
fellow inmates and workers," and "teamwork and
participation." This confirms that inmates
demonstrating a willingness and commitment to
discontinue gang activity may progress through the SDP
to their eventual release from the SHU.
(Fifth Report on the California Department of Corrections and
Rehabilitation's Progress Implementing its Future of California
Corrections Blueprint, Office of the Inspector General, March
2015; http://oig.ca.gov/media/reports/BPMR/
Fifth_Report_on_the_CDCRs_Progress_
Implementing_its_Future_of_California_Corrections_Blueprint.pdf)
5. Effect of This Legislation
According to the author, transparency is a key feature of Senate
Bill 759. Specifically, the legislation would increase
accountability by requiring CDCR to collect a variety of data
and the OIG to utilize that data to prepare a biennial report to
the legislature. This legislation, additionally, would allow
CDCR to promulgate regulations to provide inmates in segregated
housing the opportunity to earn credits.
-- END -
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