BILL ANALYSIS
AB 1866
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Date of Hearing: March 23, 2004
Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1866 (Leno) - As Introduced: February 2, 2004
SUMMARY : Invalidates regulations issued by the California
Department of Corrections (CDC) restricting media access to
prisoners. Specifically, this bill :
1)Requires the CDC to permit representatives of the media to
visit prisoners in person during regular visitation hours
subject to the normal visiting approval process except as
specified.
2)Provides that once a representative of the media is approved
for visits at any institution, the representative shall be
allowed during a one-year renewable period to visit any inmate
at that institution who is entitled to visitation and is
willing to receive visits from a representative of the news
media.
3)Allows the CDC to establish reasonable time, place and manner
restrictions to ensure the security of the institution and to
accommodate the efficient administration of a news media
interview during a regularly scheduled visitation period.
4)States that nothing in this section shall prohibit an official
of the CDC or a warden of a particular institution in his or
her discretion from adopting a policy providing for
prearranged visitation rights or greater access policies for
representatives of the news media.
5)Requires CDC to allow random interviews of individuals
encountered by a representative of the news media while
covering a facility tour, activity, program, or event.
6)Allows a representative of the news media to use materials
necessary to conduct interviews including, but not limited to,
pens, pencils, papers, cameras, and audio and video recording
devices.
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7)Requires the CDC to permit the news media to receive
confidential correspondence from a prisoner unless to do so
would pose an immediate a direct threat to the security of the
institution or the physical safety of the public.
8)Prohibits interviews of a prisoner or parolee against his or
her will.
9)Provides that no prisoner or parolee shall have his or her
visitation limited or revoked because of a visit or potential
visit from a representative of the news media, nor may a
prisoner or parolee be punished, reclassified, disciplined or
transferred to another prison against his or her wishes, for
participating in a visit by a representative of the news
media.
10)Defines "representative of the news media" as a journalist
who works for, or is under contract to, a newspaper, magazine,
wire service, or radio or television program, or who through
press passes issued by a governmental or police agency, or
through similar convincing means, can demonstrate that he or
she is a bona fide journalist engaged in the gathering of
information for distribution to the public.
EXISTING LAW :
1)Vests the Director of the CDC with the supervision, management
and control of state prisons and is responsible for the care,
custody, treatment, training, discipline and employment of a
person confined in those prisons. The Director may prescribe
rules and regulations for the administration of the prisons.
(Penal Code Sections 5054 and 5058.)
2)Requires that any restriction of a prisoner's rights during
confinement be reasonably related to legitimate penological
interests. (Penal Code Section 2600.)
3)Allows a prisoner to correspond confidentially with a public
official or an attorney provided that the prison authorities
may open and inspect mail to search for contraband. (Penal
Code Section 2601.)
4)Prohibits a prisoner from participating in a specific
face-to-face interview with a media representative. [CDC
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Regulations, Title 15, Section 3261.5(a)(2).]
5)Permits a media representative to engage in random
face-to-face interviews of individuals involved in a specific
activity or program, or encountered while covering a facility
activity or event, and shall be limited to the time, areas and
segments of the facility population designated by the
institution head. [CDC Regulations, Title 15, Section
3261.5(a)(1).]
6)Prohibits a media representative from using a camera or
recording equipment during an interview without the prior
approval of the institution head or designee. [CDC
Regulations, Title 15, Section 3261.5(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill
grants media representatives the same access to CDC inmates
that they had been privy to for over 20 years, prior to 1996.
The ability of the press to conduct interviews is crucial in
providing the general public with a balanced and informed
perspective on the operations of the state correctional
system.
"By providing the press with access to correctional
institutions, we can better maintain public accountability of
the prison system and foster a safe and efficient correctional
system. The importance of the media in informing the public
on prison spending and other critical public safety issues
cannot be underestimated.
"This bill provides a balanced approach to media access,
accommodating the concerns of prison security and open
government. At a time when public scrutiny over correctional
system is heightened, this bill is essential."
2)Background and History : In 1971, the CDC adopted a regulation
prohibiting media access to specifically named prisoners.
This regulation was upheld by the United States Supreme Court
in Pell v. Procunier (1974) 417 U.S. 817. The Court found
that a prison inmate retains those first amendment rights that
are not inconsistent with his or her status as a prisoner and
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with the legitimate penological objectives of the corrections
system and the rights of the media under the First and
Fourteenth Amendments are not infringed since the media can
still visit prisons and talk to inmates at random.
In 1975, the Legislature enacted Penal Code Section 2620
(Chapter 1175, Statutes of 1975) which provided that during
any periods of confinement, state prisoners may only be
deprived of rights "as is necessary in order to provide for
the reasonable security of the institutions . . . and for the
reasonable protection of the public." When this section was
enacted, the CDC again allowed media access to specifically
named prison inmates.
In Turner v. Safly (1987) 482 U.S. 78, the test for limiting
inmates rights was held to be whether the restriction "is
reasonably related to legitimate penological interests." In
1994, Penal Code Section was amended (Chapter 555, Statutes of
1994) to generally adopt the Turner standard. As amended
Penal Code Section 2620 stated, "A person sentenced to
imprisonment in the state prison may during a period of
confinement be deprived of such rights and only such rights as
is related to legitimate penological interests."
The adoption of the Turner standard in statute, as noted above,
prompted the CDC in 1996 to issue emergency regulations that
deleted news media from the confidential correspondence
authority and deleted authority for "specific person" media
interviews along with the procedures that had existed to
facilitate such interviews (and added language that "inmates
may not participate in specific-person face-to-face
interviews").
3)Confidential Correspondence : Until the regulation change
in1996, the CDC allowed specified persons to communicate
confidentially with specified persons, including "a
representative of the public news media defined as a full-time
reporter for a daily newspaper, daily radio or television
programs, and recognized general coverage news magazines."
[CCR Section 3141(c)(6).]
The general regulations pertaining to confidential
communications applied to news media communications. All
outgoing confidential mail was, and still is, subject to
specified procedures, including either that:
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a) The envelope must be sealed by the inmate before it is
turned over to a staff member for mailing; or,
b) The envelope must be sealed by the inmate in the
presence of the designated staff member before it is
accepted for mailing. (15 CCR 3142.)
Outgoing confidential mail may be inspected, with or without
opening the mail, for cause only (15 CCR 3144). The CDC
promulgated emergency regulations in 1996 to delete the news
media from the regulatory provisions pertaining to
confidential communications; those regulations remain in
effect today. This bill will allow news media to receive
confidential correspondence from an inmate unless to do so
would pose a threat to the security of the institution.
4)Recording Devices : Under present CDC regulations, a member of
the media may interview an inmate during regular visiting
hours; however, in order to so, the media person would have to
be on the inmate's visiting list. CDC regulations prohibit
writing materials and recording devices at these interviews.
This bill allows representatives of the media to use writing
materials and audio and video recording devices when
conducting an interview with a prisoner.
5)Definition of "Representative of the News Media" : This bill
contains a new definition of "representative of the news
media" which will apply for both confidential communications
and access to interviews with inmates. That definition is "a
journalist, who works for, or is under contract to, a
newspaper, magazine, wire service, or radio or television
program, or who through press passes issued by a governmental
or police agency, or through similar convincing means, can
demonstrate that he or she is a bona fide journalist engaged
in the gathering of information for distribution to the
public".
The CDC had used a narrower definition in its regulations, "a
representative of the public news media defined as a full-time
reporter for a daily newspaper, daily radio or television
program, and recognized general coverage news magazines."
[CCR 3141(c)(6).]
6)Prior Legislation : SB 434 (Kopp) of the 1997-98 Legislative
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Session, was similar to this bill and was vetoed. In his veto
message, Governor Wilson stated that he wanted to prevent
prisoners from gaining notoriety. In addition, Wilson
asserted that denying media access to prisoners would improve
the chances that a prisoner would be remorseful for his or her
crime.
AB 1440 (Migden), of the 1999-2000 Legislative Session, was
identical to this bill and was vetoed. In his veto message,
Governor Davis stated, "AB 1440 would give journalists
preferential treatment by giving them greater access than the
even members of the prisoner's own family. Furthermore,
according to correctional authorities, its implementation
would disrupt the orderly administration of prisons."
AB 2101 (Migden), of the 1999-2000 Legislative Session, was
identical to AB 1440 of the previous year and was again vetoed
by the Governor.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Catholic Conference of Bishops
California Coalition for Women Prisoners
Crime Victims United
Critical Resistance
Drug Policy Alliance Network
Family Council
Free Battered Woman
Friends Committee on Legislation
Legal Services for Prisoners with Children
Los Angeles County District Attorney's Association
Northern California Radio and Television News Directors
Association
Service Employees International Union
Two private citizens
Opposition
California Federation of Republican Women
Crime Victims United of California
Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744
AB 1866
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