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

          ---------------------------
          <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. 

                                      -- END -