BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1157 Hearing Date: April 12, 2016
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|Author: |Mitchell |
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|Version: |April 6, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Inmates: Visitation
HISTORY
Source: Women's Foundation of California, Women's Policy
Institute; CIVIC; Ella Baker Center; Friends Committee
on Legislation of California; Legal Service for
Prisoners with Children; A New Way of Life Re-Entry
Program; Prison Law Office; Project WHAT!
Prior Legislation:None known
Support: All of Us or None; American Civil Liberties Union;
American Friends Service Committee;
Architects/Designers/Planners for Social
Responsibility; Asian Americans Advancing
Justice-California; Bautistas por la Paz'; California
Catholic Conference, Inc.; California Immigrant Policy
Center; California Public Defenders Association;
Californians United for a Responsible Budget;
California Attorneys for Criminal Justice; Cares for
Youth; Central American Resource Center; Center on
Juvenile and Criminal Justice; City and County of San
Francisco Office of the District Attorney; Communities
United for Restorative Youth Justice; Community
Coalition; Essie Justice Group; Familia: Trans Queer
Liberation Movement; Forward Together; Friends
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Outside; Grassroots Leadership; Healing Dialog and
Action; Human Rights of the Incarcerated Coalition at
UC Berkeley; Immigrant Legal Resource Center; Inland
Coalition for Immigrant Justice; Justice for Families;
Justice Not Jails; Lawyers' Committee for Civil Rights
of the San Francisco Bay Area; Media Alliance;
National Center for Youth Law; National Immigration
Law Center; Nation Inside; National Compadres Network;
Opening Door; Pacific Juvenile Defender Center; Pangea
Legal Services; Prison Policy Initiative; Public
Counsel; Returning Home Foundation; San Francisco
Children of Incarcerated Parents; San Francisco Public
Defender; San Francisco Youth Commission; Services,
Immigrant Rights, and Education Network; Starting
Over, Inc.; Southeast Asia Resource Action Center; W.
Haywood Burns Institute; The Young Women's Freedom
Center; Numerous Indivduals
Opposition:California State Sheriffs' Association
PURPOSE
The purpose of this legislation is to prohibit local
correctional facilities and juvenile facilities from replacing
in-person visits with video or other types of electronic
visitation, as specified.
Existing regulations require a correctional facility
administrator to develop written policies and procedures for
inmate visiting which provides for as many visits and visitors
as facility schedules, space, and number of personnel will
allow. For sentenced inmates in Type I facilities and all
inmates in Type II facilities there shall be allowed no fewer
than two visits totaling at least one hour per inmate each week.
In Type III and Type IV facilities there shall be allowed one or
more visits, totaling at least one hour, per week. (15 CCR
1062.)
Existing regulations define a:
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"Type I facility" as a local detention facility used for
the detention of persons for not more than 96 hours
excluding holidays after booking. Such a Type I facility
may also detain persons on court order either for their own
safekeeping or sentenced to a city jail as an inmate
worker, and may house inmate workers sentenced to the
county jail provided such placement in the facility is made
on a voluntary basis on the part of the inmate. As used in
this section, an inmate worker is defined as a person
assigned to perform designated tasks outside of his/her
cell or dormitory, pursuant to the written policy of the
facility, for a minimum of four hours each day on a five
day scheduled work week.
"Type II facility" as a local detention facility used
for the detention of persons pending arraignment, during
trial, and upon a sentence of commitment.
"Type III facility" as a local detention facility used
only for the detention of convicted and sentenced persons.
"Type IV facility" as a local detention facility or
portion thereof designated for the housing of inmates
eligible under Penal Code Section 1208 for work/education
furlough and/or other programs involving inmate access into
the community.
(15 CCR 1006.)
This bill would prohibit local detention facilities from
replacing in-person visits with video or other types of
electronic visitation, as specified.
This bill would require that incarcerated persons in Type I
facilities and all inmates in Type II facilities be allowed no
fewer than two visits totaling at least one hour per inmate each
week, as specified.
This bill would require that incarcerated persons in a Type III
facility or a Type IV facility be allowed no fewer than one
in-person visit totaling at least one hour per incarcerated
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person each week.
This bill provides the following definitions.
"In-person visit" or "in-person visitation" means a
visit or visitation during which an incarcerated person has
contact with a visitor, is able to see a visitor through
glass, or is otherwise in an open room without contact with
a visitor.
"Local Detention facility" has the same meaning as
defined in Section 6031.4.
"Type I facility" as a local detention facility used for
the detention of persons for not more than 96 hours
excluding holidays after booking. Such a Type I facility
may also detain persons on court order either for their own
safekeeping or sentenced to a city jail as an inmate
worker, and may house inmate workers sentenced to the
county jail provided such placement in the facility is made
on a voluntary basis on the part of the inmate. As used in
this section, an inmate worker is defined as a person
assigned to perform designated tasks outside of his/her
cell or dormitory, pursuant to the written policy of the
facility, for a minimum of four hours each day on a five
day scheduled work week.
"Type II facility" as a local detention facility used
for the detention of persons pending arraignment, during
trial, and upon a sentence of commitment.
"Type III facility" as a local detention facility used
only for the detention of convicted and sentenced persons.
"Type IV facility" as a local detention facility or
portion thereof designated for the housing of inmates
eligible under Penal Code Section 1208 for work/education
furlough and/or other programs involving inmate access into
the community.
This bill would prohibit, on or after January 1, 2017, a city,
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county, or other local entity from entering into, renewing,
extending, or amending a contract with a private prison
corporation that does not provide persons to be incarcerated or
detained at the private corporation's facility, at a minimum,
the same amount of in-person visitation as required for a Type
II facility.
This bill would, additionally, prohibit juvenile halls, ranches,
camps or forestry camps from replacing in-person visits with
video or other types of electronic visitation, as specified.
And would require:
Incarcerated minors be allowed to receive in-person
visits by parents, guardians, or persons standing in loco
parentis, at reasonable times, subject only to the
limitations necessary to maintain order and security.
A minimum of two-hours of in-person visitation per week.
In-person visits may be supervised, but conversations
cannot be monitored unless there is a security or safety
need.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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
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 December of 2015 the administration reported that as "of
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December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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.
COMMENTS
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1. Need for This Bill
According to the author:
When a person is incarcerated, even for a short period of
time, family contact and in-person visits are crucial to
maintaining family stability, reducing disciplinary
infractions and violence while incarcerated, reducing
recidivism, increasing the chances of obtaining employment
post-release, and facilitation successful re-entry.<1>
Since the implementation of public safety realignment, more
people are serving time in county jails and for longer
period of time than ever before<2>. Eliminating in-person
visitation would have a drastic and negative impact on
families, particularly children, the wellbeing of
incarcerated people, and the institutional environment. . .
It is unconscionable that 74% of county jails across the
country that implemented video visitation eliminated
in-person visitation.
Families with members in these institutions must pay for
video calls from home or can video call their incarcerated
family member from the jail lobby for free. In the latter
situation, both the visitor and the incarcerated person are
often in the same building, but instead of having a real
visit, they can only see each other through a video screen.
Even when family members travel to these jails to "visit"
their loved ones through a video screen, equipment often
malfunctions, leaving them unable to see their loved ones
at all.
2. History of this Issue
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<1> U.S. Department of Justice, National Institute of
Corrections (2015). Video Visiting in Corrections: Benefits,
Limitations and Implementation Considerations. Washington D.C.
P. 3. Retrieved from
https://s3.amazonaws.com/static.nicic.gov/Library/029609.pdf.
<2> Lofstrum, M., & Martin, B. (2015). California's County
Jails. Retrieved from
http://www.ppic.org/main/publication_show.asp?i=1061
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The California Board of State and Community Corrections (BSCC)
is responsible for promulgating regulations for adult and
juvenile detention facilities. The BSCC uses Executive Steering
Committees (ESC) to inform decision making related to the
Board's programs, including distributing funds and developing
regulations. (http://www.bscc.ca.gov/s_bscc
executivesteeringcommittees.php)
For purposes of updating and promulgating regulations, the BSCC
utilizes the 2015 Adult Titles 15 and 24 Regulation Revision
ESC. This ESC, which is responsible for regulations relating to
visitation, requested that one of its working groups discuss the
current visitation regulations as they relate to video
visitation. The working group, which was comprised of only law
enforcement representatives, stated:
The Programs and Services Workgroup meeting opened with two
individuals offering public comment regarding the negative
effects on inmates and on inmates' family/friends of
providing only video visitation (lack of human contact,
cost and inconvenience to visitors). Both individuals
encouraged the workgroup to mandate in-person visiting at
local detention facilities, in addition to any other method
of visiting provided.
The workgroup engaged in a lengthy discussion regarding
video visitation versus in-person visits. Several members
of the group reported that their county is planning or
building new facilities with space for video visiting only
(no space for in-person visits). They felt that if Title 24
required space for in-person visits, then their new
facilities would be noncompliant the day the facility
opened. Some of the members cited some potential negative
impacts of in-person visits such as exposing children to
the inside of a jail, the staff time it can take to move
inmates and the security concerns of moving high-security
inmates.
Most of the group agreed that the regulation should remain
flexible regarding how visitation is provided and decided
to develop the following definitions:
"In-person visit" means an on-site visit that may
include barriers.
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"Contact visit" means an on-site visit without
barriers.
"Video visit" means an on-site or remote visit through
the means of audio-visual communication devices.
The workgroup also discussed practices surrounding video
visitation, both at the facility and remotely (possibly
from the visitor's home). They agreed that the required one
hour of visiting per week should be at no cost to the
inmate, family and friends.
It must be noted that the workgroup was not unanimous in
agreement over the decision not to require in-person visits
in local detention facilities.
(http://www.bscc.ca.gov/downloads/Programs%20and%20Services%
20Worksheets%20For%20ESC%20Review.pdf)
The working group recommended, "Regarding video visitation,
counties need to be legally defensible in its use." The
workgroup revised the visitation regulation to state:
§ 1062. Visiting
(a) The facility administrator shall develop written
policies and procedures for inmate visiting which shall
provide for as many visits and visitors as facility
schedules, space, and number of personnel will allow. For
sentenced inmates in Type I facilities and all inmates in
Type II, facilities there shall be allowed no fewer than
two visits totaling at least one hour per inmate each
week. In Type III and Type IV facilities there shall be
allowed one or more visits, totaling at least one hour,
per inmate each per week.
(b) In Type I facilities, the facility administrator
shall develop and implement written policies and
procedures to allow visiting for non-sentenced detainees.
The policies and procedures will include a schedule to
assure that non-sentenced detainees will be afforded a
visit no later than the calendar day following arrest.
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(c) The visiting policies developed pursuant to this
section shall include provision for visitation by minor
children of the inmate.
(d) One hour per week of on-site (in-person or video)
visiting time shall be free of charge.
The justification offered for the revision was:
As currently written, the second sentence of the regulation
does not provide sufficient flexibility to facility
operators because it seems to require visits on two
separate days totaling one hour. Removing "facilities there
shall be allowed no fewer than two visits totaling at least
one hour per inmate each week" in the second sentence
clarifies that the required visitation time of one hour may
be provided in two half-hour visiting periods or one
one-hour period.
Subsection (d) was added because some facilities use video
visitation in lieu of the in-person visits between the
inmate and family and friends. If providers of video
visitation charge for the mandated one-hour of visitation,
it could be a fiscal hardship to the inmate, family and
friends.
On March 30, 2016, the ESC adopted the working group's
recommendation not require in-person visitation and to, instead,
provide one free hour of visitation, whether it be in-person or
via video. The recommendation of the ESC will proceed to the
BSCC for a final decision.
3. Effect of This Legislation
"Currently, more than 500 facilities in 43 states and the
District of Columbia are experimenting with video visitation.
Much of this growth has occurred in the last two to three years
as prison and jail telephone companies have started to bundle
video visitation into phone contracts." (Screening Out Family
Time: The For-Profit Video Visitation Industry in Prisons and
Jails, Bernadette Rabuy and Peter Wagner, January 2015,
http://www.prisonpolicy.org/ visitation/report.html.)
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This article additionally notes that while there are differences
in the rates, fees, commissions, and practices in each contract,
three patterns are common:
1. Most county jails ban in-person visits once they
implement video visitation.
2. Video visitation contracts are almost always bundled
with other services like phones, email, and commissary,
and facilities usually do not pay anything for video
visitation.
3. Unlike with phone services, there is little
relationship between rates, fees, and commissions beyond
who the company is.
While virtually no state prisons ban in-person visitation,
we found that 74% of jails banned in-person visits when
they implemented video visitation. Though abolishing
in-person visits is common in the jail video visitation
context, Securus is the only company that explicitly
requires this harmful practice in its contracts. The record
is not always clear about whether the jails or the
companies drive this change, but by banning in-person
visits, it is clear that the jails are abandoning their
commitment to correctional best practices. (Id.)
The Securus website states that it currently provides services
to California Jails, including Butte County Jail, Napa County
Jail, San Diego County Jail- Facility 8, San Diego County Jail-
Las Colinas Detention & Reentry Facility.
(https://securustech.net/facilities-and-pricing.) According to
information provided by the author, Napa, San Diego and Butte
counties are not the only counties that have eliminated
in-person visitation:
At least five California counties (Kings, Napa, San
Bernardino, San Diego, and Solano) have eliminated
in-person visitation in at least one of their jails,
meaning families there can only see their loved ones
through a computer screen.
Two counties (Imperial and Placer) have severely restricted
in person visitation since adopting video visits.
Three additional counties (Orange, San Mateo, and Tulare)
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intend to renovate or build new facilities that have no
space for in-person visits. Families with loved ones in
these facilities will only be able to see their loved ones
through a computer screen. At least six other California
counties (Butte, Los Angeles, Mendocino, Plumas, Riverside
and San Luis Obispo) use video visits in at least one of
their jails and at least seven other counties (Merced,
Sacramento, San Joaquin, Santa Barbara, Santa Cruz, Sutter,
and Yolo) plan to adopt a video visitation system.
The elimination of in-person visitation could prove to be
detrimental to both inmates and their families. "Visiting cannot
replicate seeing someone in-person, and it is critical for a
young child to visit his or her incarcerated parent in person to
establish a secure attachment." (Video Visiting in Corrections:
Benefits, Limitations and Implementation Considerations, U.S.
Department of Justice, National Institute of Corrections (2015),
page 17 (Footnotes omitted).
Californians United for a Responsible Budget, who support this
legislation, echo this concern:
In-person visitation is essential to a person's successful
reentry into their community - it is proven to improve
behavior inside correctional facilities, reduce recidivism,
and increase chances of obtaining employment post-release.
In-person visitation is also important for family members
and loved ones on the outside, especially children, who
also struggle with the incarceration of their loved ones.
Video visits, however, have not been shown to increase
family connectivity and likely have a negative effect on
young children who struggle to understand that the person
on the screen is their parent.
To address these concerns, this legislation requires that county
correctional and juvenile facilities provide in-person
visitation.
4.Argument in Opposition
According to the California State Sheriff's Association,
We do not disagree that in-person visitation can bring
positive outcomes. That said, we are opposed to a
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prohibition on the exclusive use of video visitation. Some
facilities are switching to video visitation because it can
be more efficient, often allows more frequent visitation,
and can significantly reduce the introduction of contraband
into correctional facilities.
Video visitation has beneficial aspects and we have
concerns about this legislative directive that attempts to
over-regulate jail operations.
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