BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1866 (Leno) 6
As Amended May 20, 2004
Hearing date: June 22, 2004
Penal Code
KM:mc
STATE PRISONERS -
NEWS MEDIA VISITATION AND RANDOM INTERVIEWS
HISTORY
Source: Author
Prior Legislation: AB 2101 (Migden) - vetoed September 30, 2000
AB 1440 (Migden) - vetoed September 7, 1999
SB 434 (Kopp) - vetoed October 12, 1997
Support: Organization from which support was received for
current version of bill:
California Catholic Conference of Bishops; Los Angeles
County District Attorney's Office; Friends Committee on
Legislation; California Public Defenders Association
Organizations from which support was received prior to
current version of bill:
California Coalition for Women Prisoners; Free Battered
Women; Drug Policy Alliance Network; Service Employees
International Union; Family Council; Legal Services for
Prisoners with Children; Stop Prisoner Rape; Critical
Resistance; Northern California Radio and Television
News Director's Association; Two individuals
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Opposition:California Newspaper Publishers Association;
California Federation of Republican Women; California
Broadcasters Association; American Civil Liberties
Union
Assembly Floor Vote: Ayes 45 - Noes 33
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS BE REQUIRED TO PERMIT
REPRESENTATIVES OF THE NEWS MEDIA, AS SPECIFIED, TO VISIT PRISONERS
IN PERSON DURING A PRISONER'S REGULAR VISITATION HOURS, SUBJECT TO
THE NORMAL FRIENDS' AND RELATIVES' VISITING APPROVAL PROCESS, EXCEPT
AS PROVIDED?
DURING ANY VISIT WITH A PRISONER, SHOULD A REPRESENTATIVE OF THE
NEWS MEDIA BE ALLOWED TO USE ONLY HIS OR HER OWN PENS, PENCILS, AND
PAPERS - WHICH SHALL BE SUBJECT TO SEARCH?
SHOULD REPRESENTATIVES OF THE NEWS MEDIA BE REQUIRED TO IMMEDIATELY
REPORT ANY CHANGE IN THEIR EMPLOYMENT STATUS OR FREELANCE ASSIGNMENT
TO THE DEPARTMENT OF CORRECTIONS, WITH POSSIBLE REVOCATION OF
VISITING PRIVILEGES FOR THE FAILURE TO DO SO?
SHOULD EXISTING DEPARTMENT OF CORRECTIONS REGULATIONS BE CODIFIED TO
REQUIRE THE DEPARTMENT TO PERMIT RANDOM INTERVIEWS OF INDIVIDUALS
ENCOUNTERED BY A REPRESENTATIVE OF THE NEWS MEDIA WHILE COVERING A
FACILITY TOUR, ACTIVITY, PROGRAM, OR EVENT, AS SPECIFIED?
DURING ANY RANDOM INTERVIEW WITH A PRISONER, SHOULD A REPRESENTATIVE
OF THE NEWS MEDIA BE PERMITTED TO USE MATERIALS NECESSARY TO CONDUCT
THE INTERVIEW, INCLUDING, BUT NOT LIMITED TO, PENS, PENCILS, AND
PAPERS?
SHOULD THE USE OF CAMERAS AND AUDIO AND VIDEO RECORDING DEVICES IN
ANY RANDOM INTERVIEW WITH A PRISONER REQUIRE THE PRIOR APPROVAL OF
THE INSTITUITION HEAD OR DESIGNEE?
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PURPOSE
The purposes of this bill are to (1) require the Department of
Corrections to permit representatives of the news media to visit
prisoners in person during a prisoner's regular visitation
hours, subject to the normal friends' and relatives' visiting
approval process, except as provided; (2) require that
representatives of the news media immediately report any change
in their employment status or freelance assignment to the
Department of Corrections; (3) allow representatives of the news
media to use only pens, pencils, and papers in personal visits
with prisoners, (4) codify existing Department of Corrections
regulations to require the department to permit random
interviews of individuals encountered by a representative of the
news media while covering a facility tour, activity, program, or
event; (5) require that the use of cameras and audio and video
recording devices in random interviews have the prior approval
of the institution head or designee; (6) allow the department 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 visiting period or random interview; and (7)
to make related changes.
Under existing law , the Director of the Department of
Corrections is vested with the supervision, management and
control of the 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 5054 and 5058.)
Existing law generally provides that state prisoners may, during
confinement, be deprived of only such rights as is reasonably
related to legitimate penological interests. (Penal Code
2600.)
Existing law specifies certain civil rights of a state prisoner,
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including the right to correspond confidentially with any member
of the State Bar or holder of public office, provided that the
prison authorities may open and inspect incoming mail to search
for contraband. In addition, restrictions on obscene
publications or writings and matters tending to incite violence
may specifically be imposed. (Penal Code 2601.)
Existing regulations of the Department of Corrections do the
following:
Prohibit a prisoner from participating in a specific
face-to-face interview with a media representative. (DOC
regulations, Title 15, 3261.5 (a)(2).)
Prohibit a media representative from using a camera or
recording equipment during an interview without the prior
approval of the institution head or designee. (DOC
regulations, Title 15, 3261.5 (b).)
Permit media representatives to engage in random interviews
with prisoners encountered during a tour of a detention
facility. (DOC regulations, Title 15, 3261.5(a)(1).)
Define "media representative" to mean a print, wire service
or broadcast reporter and their technical crew. A
free-lance writer with assignment verification in the form
of a letter from the represented outlet is also a media
representative. (DOC regulations, Title 15, 3000.)
This bill does the following:
Requires that the Department of Corrections (CDC) permit
representatives of the news media, as specified, to visit
prisoners in person during a prisoner's regular visitation
hours, subject to the normal friends' and relatives' visiting
approval process, except as provided.
Provides that during any visit with a prisoner, should a
representative of the news media be allowed to use only his or
her own pens, pencils, and papers - which shall be subject to
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search?
Requires that representatives of the news media immediately
report any change in their employment status or freelance
assignment to the CDC, with possible revocation of visiting
privileges for the failure to do so.
Codifies existing CDC regulations to require the department to
permit random interviews of individuals encountered by a
representative of the news media while covering a facility
tour, activity, program, or event, as specified.
Permits, during any random interview with a prisoner, a
representative of the news media to use materials necessary to
conduct the interview, including, but not limited to, pens,
pencils, and papers.
Requires prior approval of the institution head or designee
for the use of cameras and audio and video recording devices
in any random interview with a prisoner.
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 visiting period or
random interview.
Provides that no prisoner or parolee may 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.
Makes related changes in law.
COMMENTS
1. Need for This Bill
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Information provided by the author includes the following:
There is currently a blanket ban on media interviews with
prisoners. The CDC has, in the past, permitted media
access to state prisoners without endangering the safety of
the prisons or the public. The restrictions currently in
place prevent a media representative from even carrying in
a notebook or recording device, making any interactions
extremely difficult.
The California Department of Corrections Regulations
prohibit a prisoner from participating in a specific
face-to-face interview with a media representative and
prohibit a media representative from using a camera or
recording equipment, including paper, pencils and pens,
during an interview without the prior approval of the
institution head or designee. (CDC Regulations, Title 15,
Section 3261.5) The California Department of Corrections
Regulations do permit media representatives to engage in
interviews with random prisoners and permit media
representatives to engage in interviews with random
prisoners encountered during tour of detention facility.
(CDC Regulations, Title 15, Section 3261.5.)
Currently, in order to meet with an inmate, a journalist is
also required to follow visitation regulations for friends
and family members when applying for access. Existing
visitation procedures, which can take months, require
journalists to specify a particular inmate on the
application. Any interview with an inmate other than the
specified prisoner must be cleared through a separate and
independent visitation application.
This bill would repeal sections of the regulations by
permitting face-to-face interviews, providing easier
visitation access for journalist and allowing the use of
paper, pencils, and pens in an interview.
AB 1866 grants media representatives the same access to
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California Department of Corrections inmates that they had
been privy to for over twenty 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 the 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.
AB 1866 provides a balanced approach to media access,
accommodating the concerns of prison security and open
government. At a time when public scrutiny over our
correctional system is heightened, this bill is essential.
2. History of the Issue - Media Access to State Prison Inmates
Until comparatively recently, prisoners in California and
widely throughout the United States were determined to be
"civilly dead" while incarcerated.
In 1968, Chapter 1402, Statutes of 1968, was enacted to
restore some rights to inmates and in 1975, former Penal Code
sections 2600 et seq. - "Chapter 3. Civil Death of Prisoners"
- were repealed and replaced with new Penal Code sections 2600
and 2601 - "Chapter 3. Civil Rights of Prisoners" (Chapter
1175, Statutes of 1975).
The 1975 law 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."
From 1975 through 1994, the court test for evaluating
California Department of Corrections "restrictions on state
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prisoners" was articulated as follows:
a. were any "rights" implicated?
b. if they were, did a "reasonable security" problem
exist which might permit a deprivation of rights under
the statute?
c. if so, to what extent were deprivations of those
rights "necessary" to satisfy reasonable security
interests? ( In Re Arias [1986] 42 Cal.3rd 667.)
For a period of time prior to 1971, the Department of
Corrections allowed liberal access by news media to prison
inmates, including access to specifically-named inmates. That
policy lead to some inmates being interviewed quite often and
allegedly lead to those inmates becoming able to cause other
inmates to follow the tenants of those inmates who were the
subject of frequent interviews about the prison system. The
media coverage of some few inmates resulted in some referring
to a "Big Wheel" theory of the acquired power of those
inmates.
In 1971, the Department adopted a regulation prohibiting media
access to specifically-named prisoners for interviews.
In 1974, that regulation was upheld by the United States
Supreme Court in Pell v. Procunier (417 U.S. 817 [1974]). The
Court found that there was a rational connection between the
regulation and the legitimate governmental interest used in
justification; that an alternative means of exercising the
right was available to inmates; the impact of accommodating
the right asserted on others and the allocation of prison
resources was considered; and there was no ready alternative
which would accommodate the right at a de minimus cost to
valid penological interests. (The Court found that a "prison
inmate retains those First Amendment rights that are not
inconsistent with his status as prisoner or with the
legitimate penological objectives of the corrections system"
and that "rights of the media appellants under the First and
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Fourteenth Amendments are not infringed" since they can still
visit prisons and talk to inmates at random.) In another
case, the Court invalidated California Department of
Corrections regulations which allowed inmate mail to be
censored for specified grounds, including that inmates "unduly
complain" or "magnify grievances" in correspondence.
( Procunier v. Martinez , 416 U.S. 396, 416 [1974].)
When the new 1975 "deprivation of rights" test was enacted in
California, the Department of Corrections again allowed access
to specifically-named prison inmates.
In Turner v. Safley (482 U.S. 78 [1987]) the general test for
limiting inmate rights was held to be whether the restriction
"is reasonably related to legitimate penological interests."
That standard applies in the absence of a stricter test, such
as that adopted in California in 1975.
In 1994, Penal Code section 2600 was changed so that generally
"A person sentenced to imprisonment in a state prison may
during that period of confinement be deprived of such rights,
and only such rights, as is reasonably related to legitimate
penological interests." Thus California generally adopted the
Turner - or "Federal" - standard for limiting inmate rights.
In 1996, emergency regulations were issued by the Department
of Corrections which (1) deleted news media from the
confidential correspondence authority and (2) deleted
authority for "specific person" media interviews along with
the procedures which had existed to facilitate such interviews
(and added language that: "Inmates may not participate in
specific-person face-to-face interviews.") The Department
based its regulations primarily on the adoption of the Turner
standard in California in 1994.
The Office of Administrative Law and the Department engaged in
considering deficiencies noted by the OAL in the original
submission by the Department of the regulations for permanent
approval of the emergency regulations which change the media
contact provisions. The Department resubmitted the
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regulations for approval on March 3, 1997. Those changes were
subsequently approved and are currently in effect.
AB 1440 (Migden) of the 1999-2000 legislative session would
have provided broad media access to prisons. That bill was
vetoed by the governor in 1999.
AB 2101 (Migden) of the 1999-2000 legislative session
initially was identical to AB 1440, but amendments were made
which narrowed the scope of the original bill. AB 2101 was
vetoed in 2000. The governor's veto message stated:
This bill would allow the news media virtually unlimited
access to convicted felons incarcerated in California state
prisons. This measure would also permit the news media to
receive confidential correspondence from a prisoner.
Under present law, journalists have ample opportunities to
interview convicts: 1) during regular visiting hours on the
same basis as family and friends; 2) by accepting collect
phone calls from the prisoner; 3) by written
correspondence; and 4) by unlimited access
to the prisoner's lawyer.
This bill is inconsistent with the national trend to
reduce, not expand, rights of prisoners (e.g., prohibiting
them from profiting from their crimes by selling their
"stories" via book, television, or movie rights).
Furthermore, according to correctional authorities, its
implementation would disrupt the orderly administration of
prisons and interfere with the ability of inmate families
to visit their loved ones.
The purposes of incarceration is punishment and deterrence;
it is not to provide additional celebrity to convicts, many
of whose criminal acts were brutal and violent, thereby
causing further pain to the victims and their loved ones.
AB 2101 is based on the false premise that press interviews
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with inmates are banned. The press can either visit
inmates during regular visiting periods, or receive collect
calls from inmates. These are the same rights provided to
the inmate's family and friends.
This bill guarantees the press preferred access greater
than that accorded family members and close friends. The
regulations currently in force are properly balanced to
achieve legitimate objectives.
The introduced version of AB 1866 was modeled after the last
amended version of AB 2101. Recent amendments have
significantly narrowed its focus, however.
3. Department of Corrections Regulations Which Applied to News
Media Interviews
For over 20 years, the Department of Corrections allowed routine
media interviews that included random or specific person
interviews. Such interviews were to be conducted under
conditions set by the institution head (wardens) and could
include time, place and duration limits as well as limits on the
size of technical crews. Interviews with specified prisoners
were permitted with prior approval; limited to no more than one
interview in a 90-day period for inmates in administrative
segregation with a media "pool" option for such inmates. (15
CCR Section 3261.5.)
The Department of Corrections promulgated emergency regulations
in 1996 to delete the regulatory authority for news media to
conduct specified prisoner interviews, including any
pre-arranged specified prisoner interviews. The Department
added specific regulatory language that "inmates may not
participate in specific-person face-to-face interviews."
The Department indicates that media may visit inmates as would
any person who seeks such visits. Visits are to be arranged by
the media person and the inmate; the Department indicates that,
as with any day visits, no writing materials or recording
devices are allowed.
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IF THE INTENT OF THE DEPARTMENT IS TO PREVENT THE
"GLAMORIZATION" OF INMATES, IS RESTRICTING SPECIFIC-INMATE
INTERVIEWS AN APPROPRIATE RESPONSE TO PREVENT THAT?
IF THE MEDIA CONCERN IS ACCESS TO INFORMATION ABOUT THE PRISON
SYSTEM, IS RESTRICTING SPECIFIC-INMATE INTERVIEWS LIKELY TO
IMPEDE THAT MEDIA OBJECTIVE?
4. Related Legislation
SB 1164 (Romero) was introduced on February 2, 2004, and passed
out of this committee on March 23, 2004, with a vote of 4 - 1.
SB 1164 (Romero) passed out of the Assembly Committee on Public
Safety on June 15, 2004, with a vote of 4 - 2. SB 1164 (Romero)
overrides 1996-97 regulations adopted by the Department of
Corrections which (1) deleted media from inmate confidential
communications authorization, and (2) limited news media
interviews of prisoners to random only.
A comparison of AB 1866 (Leno) and SB (1164) Romero is as
follows:
Bill Origin:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|The introduced version of AB |SB 1164 is identical to AB |
|1866 was identical to the last |1440 (Migden) - vetoed |
|amended version of AB 2101 |September 7, 1999. |
|(Migden) - vetoed September | |
|30, 2000. | |
---------------------------------------------------------------
Penal Code Section Added:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
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|-------------------------------+-------------------------------|
|Adds 5009.5 to the Penal |Adds 2602 and 2603 to the |
|Code |Penal Code |
| | |
---------------------------------------------------------------
Intent Language:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
| |"It is the intent of the |
| |Legislature in enacting this |
| |act to invalidate changes in |
| |Section 3261.5 of Title 15 of |
| |the California Code of |
| |Regulations for which a |
| |certificate of compliance was |
| |filed on April 14, 1997." |
| | |
---------------------------------------------------------------
Findings and Declarations:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
| |"(1) Free exchange of |
| |information from behind prison |
| |walls benefits the public and |
| |fosters a safe and efficient |
| |prison system; (2) CDC has |
| |historically permitted media |
| |access to state prisoners |
| |without endangering the safety |
| |of the prisons or the public; |
| |(3) Members of the news media |
| |should be permitted to |
| |interview state prisoners |
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| |unless that access would pose |
| |an immediate and direct threat |
| |to the security of the |
| |institution or the safety of |
| |members of the public; and, |
| |(4) There is no legitimate |
| |reason for a blanket ban on |
| |media interviews with |
| |prisoners." |
| | |
---------------------------------------------------------------
Definition of Representative of the News Media:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|"as defined in Section 3000 of |"a journalist who works for, |
|Title 15 of the California |or is under contract to, a |
|Code of Regulations" |newspaper, magazine, wire |
| |service, book publisher, or |
| |radio or television program, |
| |or station 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" |
| | |
---------------------------------------------------------------
Section 3000 of Title 15 of the California Code of Regulations -
the regulations of the Department of Corrections - define "media
representative" as "a print, wire service or broadcast reporter
and their technical crew or a free-lance writer with assignment
verification in the form of a letter from the represented
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outlet."
Representative of the News Media Subject to Normal Visiting
Approval Process:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|Subject to the normal friends' |Representatives of the news |
|and relatives' visiting |media need not be approved |
|approval, except that a |visitors in order to have |
|representative of the news |personal interviews with |
|media may apply to be an |prisoners. |
|approved visitor at an | |
|institution without | |
|identifying a specific | |
|prisoner on the application | |
|form, and need not be on a | |
|prisoner's list of approved | |
|visitors. Once approved for | |
|visits at any institution, a | |
|representative of the news | |
|media shall be allowed during | |
|a one-year, renewable period | |
|to visit any prisoner at that | |
|institution who is entitled to | |
|visitation and is willing to | |
|receive visits from a | |
|representative of the news | |
|media. | |
|Any change in the employment | |
|status or freelance assignment | |
|of a representative of the | |
|news media shall be reported | |
|to CDC immediately. Failure of | |
|a representative of the news | |
|media to report a change in | |
|employment status or freelance | |
|assignment may result in the | |
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|revocation of visiting | |
|privileges. | |
---------------------------------------------------------------
IN ORDER TO CONDUCT PERSONAL INTERVIEWS WITH PRISONERS, SHOULD
REPRESENTATIVES OF THE NEWS MEDIA BE REQUIRED TO APPLY TO BE AN
APPROVED VISITOR AT AN INSTITUTION?
SHOULD REPRESENTATIVES OF THE NEWS MEDIA BE REQUIRED TO
IMMEDIATELY REPORT ANY CHANGE IN THEIR EMPLOYMENT STATUS OR
FREELANCE ASSIGNMENT TO THE DEPARTMENT OF CORRECTIONS?
SHOULD THE FAILURE OF A REPRESENTATIVE OF THE NEWS MEDIA TO
REPORT A CHANGE IN EMPLOYMENT STATUS OR FREELANCE ASSIGNMENT
POSSIBLY RESULT IN THE REVOCATION OF VISITING PRIVILEGES?
Media Access:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|Regular visitation hours: CDC |CDC, upon reasonable notice, |
|shall permit media |shall permit representatives |
|representatives to visit |of the news media to interview |
|prisoners in person during a |prisoners in person, including |
|prisoner's regular visitation |prearranged interview with |
|hours. |specified prisoners. |
|Random interviews: CDC shall |CDC shall permit random |
|permit random interviews of |interviews of individuals |
|individuals encountered by a |encountered by a |
|representative of the news |representative of the news |
|media while covering a |media while covering a |
|facility tour, activity, |facility tour, activity, |
|program, or event. |event, or program. |
| | |
| | |
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In 1996, SB 1221 (Calderon) deleted the right to have personal
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visits from the enumerated civil rights of a state prisoner. In
2003, CDC regulations were changed to reflect that statutory
change (Title 15 California Code of Regulations 3170). Since
then, visitation days have been reduced from four days per week,
to two days per week for budgetary reasons.
SHOULD MEDIA ACCESS TO PRISONERS BE LIMITED TO REGULAR
VISITATION HOURS AND RANDOM INTERVIEWS?
Materials/Tools Permitted:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|Regular visitation hours: a |During any interview with a |
|representative of the news |prisoner, a representative of |
|media may use his or her own |the news media may use |
|pens, pencils, and papers. |materials necessary to conduct |
|These items are subject to |the interview, including, but |
|search. |not limited to, pens, pencils, |
|Random interviews: During any |papers, and audio and video |
|random interview with a |recording devices. |
|prisoner, a representative of | |
|the news media may use | |
|materials necessary to conduct | |
|the interview, including, but | |
|not limited to, pens, pencils, | |
|and papers. The use of | |
|cameras and audio and video | |
|recording devices shall | |
|require the prior approval of | |
|the institution head or | |
|designee. | |
| | |
---------------------------------------------------------------
DURING ANY VISIT WITH A PRISONER, SHOULD A REPRESENATIVE OF THE
NEWS MEDIA BE ALLOWED TO USE HIS OR HER OWN PENS, PENCILS, AND
PAPERS - WHICH SHALL BE SUBJECT TO SEARCH?
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SHOULD THE USE OF CAMERAS AND AUDIO AND VIDEO RECORDING DEVICES
BE ALLOWED ONLY DURNING RANDOM INTERVIEWS, AND REQUIRE PRIOR
APPROVAL?
Confidential Correspondence:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
| |Provides that the department |
| |shall permit the news media to |
| |receive confidential |
| |correspondence from a prisoner |
| |unless to do so would pose an |
| |immediate and direct threat to |
| |the security of the |
| |institution or the safety of |
| |the public. |
| | |
---------------------------------------------------------------
For a number of years, until 1996, Department of Corrections
regulations which allowed state prison inmates to correspond
confidentially with specified person, included "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." (15 California
Code of Regulations [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:
"(1) The envelope must be sealed by the inmate before it
is turned over to a
staff member for mailing; or,
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(2) The envelope must be sealed by the inmate in the
presence of a 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 Section 3144.)
Incoming confidential mail is subject to the following review:
"To determine the possible presence of contraband all
incoming confidential mail will be inspected prior to
delivery to an inmate. Confidential mail will be opened
and inspected for contraband only and only in the presence
of the inmate addressee. Inspecting correctional officials
will not read any of the contents of the confidential
mail." (15 CCR Section 3144.)
The Department of Corrections promulgated emergency regulations
in 1996 to delete news media from the regulatory provisions
pertaining to confidential communications; those regulations
remain in effect today.
The general regulation pertaining to inmate mail includes:
"(a) All nonconfidential inmate mail is subject to
being read in its entirety or in part by designated
employees of the facility before it is mailed for or
delivered to an inmate. The institutional head or
designee may reject mail sent by or to an inmate as
provided in section 3136." (15 ccr 3138.)
This bill does not provide for confidential correspondence
between a prisoner and a representative of the news media.
SHOULD CONFIDENTIAL CORRESPONDENCE BETWEEN A PRISONER AND A
REPRESENTATIVE OF THE NEWS MEDIA BE ALLOWED?
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Security of the Institution:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
|-------------------------------+-------------------------------|
|The department may establish |A personal interview of a |
|reasonable time, place, and |particular prisoner may be |
|manner restrictions to ensure |denied if the department |
|the security of the |determines that the interview |
|institution and to accommodate |would pose an immediate and |
|the efficient administration |direct threat to the security |
|of a news media interview |of the institution or the |
|during a regularly scheduled |physical safety of a member of |
|visiting period or random |the public. |
|interview. |The department may establish |
| |reasonable time, place, and |
| |manner restrictions for prison |
| |interviews, including |
| |limitations on the number of |
| |interviews per prisoner in a |
| |specified time period, and |
| |requiring arrangements for |
| |pool interviews if requests to |
| |interview any one prisoner are |
| |excessive, in order to ensure |
| |the security of the |
| |institution, the physical |
| |safety of the public, and the |
| |efficient administration of |
| |news media interviews. |
| | |
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Rights of Prisoners/Parolees:
---------------------------------------------------------------
| AB 1866 (Leno) | SB 1164 (Romero) |
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AB 1866 (Leno)
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|-------------------------------+-------------------------------|
|No prisoner or parolee shall |No prisoner or parolee shall |
|be interviewed or receive a |be interviewed against his or |
|visit from a representative of |her will. |
|the news media against his or | |
|her will. No prisoner or | |
|parolee may 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. | |
| | |
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5. Federal Regulations Regarding Media Access to Prisons
Federal Regulations Regarding Purpose and Scope of Media
Access to Prisons:
Title 28 of the Code of Federal Regulations states the following
regarding the purpose and scope of news media contact with
prisons:
The Bureau of Prisons recognizes the desirability of
establishing a policy that affords the public information
about its operations via the news media. Representatives
of the news media (see 540.2) may visit institutions for
the purpose of preparing reports about the institution,
programs, and activities. It is not the intent of this
rule to provide publicity for an inmate or special
privileges for the news media, but rather to insure a
better informed public. The Bureau of Prisons also has a
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AB 1866 (Leno)
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responsibility to protect the privacy and other rights of
inmates and members of the staff. Therefore, an interview
in an institution must be regulated to insure the orderly
and safe operation of the institution. (28 CFR 540.60.)
Definition of "Representatives of the News Media":
Federal regulations provide that "representatives of the news
media" means persons whose principal employment is to gather
or report news for:
(1) A newspaper which qualifies as a general circulation
newspaper in the community in which it is published. A
newspaper is one of "general circulation" if it circulates
among the general public and if it publishes news of a
general character of general interest to the public such as
news of political, religious, commercial, or social
affairs. A key test to determine whether a newspaper
qualifies as a "general circulation" newspaper is to
determine whether the paper qualifies for the purpose of
publishing legal notices in the community in which it is
located or the area to which it distributes;
(2) A news magazine which has a national circulation and is
sold by newsstands and by mail subscription to the general
public;
(3) A national or international news service; or
(4) A radio or television news program, whose primary purpose
is to report the news, of a station holding a Federal
Communications Commission license. (28 CFR 540.2.)
Authorization Requirements:
Code of Federal Regulations state the following regarding
authorization requirements for a news media representative to
visit or conduct an interview at an institution:
(a) A news media representative who desires to make a visit
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or conduct an interview at an institution must make
application in writing to the Warden, indicating that he or
she is familiar with the rules and regulations of the
institution and agrees to comply with them.
(b) As a condition of authorizing interviews and making
facilities available to conduct an interview, the news
media representative shall recognize a professional
responsibility to make reasonable attempts to verify any
allegations regarding an inmate, staff member or
institution.
(c) A representative of the news media is requested to
provide the Bureau of Prisons an opportunity to respond to
any allegation, which might be published or broadcast prior
to distribution.
(d) A representative of the news media shall collect
information only from the primary source. A representative
of the news media may not obtain and use personal
information from one inmate about another inmate who
refuses to be interviewed.
(e) The Warden may be contacted concerning discussions or
comments regarding applicability of any rule or order.
(f) Failure to adhere to the standards of conduct set forth
by this rule for the news media representative constitutes
grounds for denying that news media representative, or the
news organization which he or she represents, permission to
conduct an interview.
(g) Any questions as to the meaning or application of this
subpart are resolved by the Director of the Bureau of
Prisons. (28 CFR 540.61.)
Institutional Visits:
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AB 1866 (Leno)
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Code of Federal Regulations state the following regarding media
representative prison visits:
(a) A media representative shall make advance appointments
for visits.
(b) When media representatives visit the institutions,
photographs of programs and activities may be taken, and
media representatives may meet with groups of inmates
engaged in authorized programs and activities. An inmate
has the right not to be photographed and not to have his or
her voice recorded by the media. A visiting representative
of the media is required to obtain written permission from
an inmate before photographing or recording the voice of an
inmate participating in authorized programs and activities.
(c) The Warden may suspend all media visits during an
institutional emergency and for a reasonable time after the
emergency.
(d) An inmate currently confined in an institution may not
be employed or act as a reporter or publish under a byline.
(e) Interviews by reporters and others not included in
540.2 may be permitted only by special arrangement and with
approval of the Warden. (28 CFR 540.62.)
Personal Interviews:
Code of Federal Regulations state the following regarding
personal interviews of inmates by media representatives:
(a) An inmate may not receive compensation or anything of
value for interviews with the news media.
(b) Either an inmate or a representative of the news media
may initiate a request for a personal interview at an
institution.
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(c) Visits by the news media to conduct personal interviews
are subject to the same conditions stated in 540.62. A
media representative shall make a request for personal
interview within a reasonable time prior to the personal
interview.
(d) Staff shall notify an inmate of each interview request,
and shall, as a prerequisite, obtain from the inmate
written consent for the interview prior to the interview
taking place. The written consent or denial becomes part of
the inmate's central file.
(e) As a prerequisite to granting the interview, an inmate
must authorize the institutional staff to respond to
comments made in the interview and to release information
to the news media relative to the inmate's comments.
(f) The Warden shall normally approve or disapprove an
interview request within 24 to 48 hours of the request.
(g) The Warden shall document any disapproval. A request
for interview may be denied for any of the following
reasons.
(1) The news media representative, or the news organization
which he or she represents, does not agree to the
conditions established by this subpart or has, in the past,
failed to abide by the required conditions.
(2) The inmate is physically or mentally unable to
participate. This must be supported by a medical officer's
statement (a psychologist may be used to verify mental
incapacity) to be placed in the inmate's record,
substantiating the reason for disapproval.
(3) The inmate is a juvenile (under age 18) and written
consent has not been obtained from the inmate's parent or
guardian. If the juvenile inmate's parents or guardians are
not
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known or their addresses are not known, the Warden of the
institution shall notify the representative of the news
media of the inmate's status as a juvenile, and shall then
consider the request.
(4) The interview, in the opinion of the Warden, would
endanger the health or safety of the interviewer, or would
probably cause serious unrest or disturb the good order of
the institution.
(5) The inmate is involved in a pending court action and
the court having jurisdiction has issued an order
forbidding such interviews.
(6) In the case of unconvicted persons (including
competency commitments under 18 U.S.C. 4244 and 4246) held
in federal institutions, interviews are not authorized
until there is clearance with the court having
jurisdiction, ordinarily through the U.S. Attorney's
Office.
(7) The inmate is a "protection" case and revelation of his
or her whereabouts would endanger the inmate's safety.
(h) Interviews are normally held in the institution
visiting room during normal weekday business hours. The
Warden may:
(1) Determine that another location is more suitable for
conducting the interview;
(2) Limit interview time for the entire institution if the
Warden determines that the interviews are imposing a
serious drain on staff or use of the facilities;
(3) Limit to one one-hour interview per month for an inmate
in segregation, restricted, holdover, control unit, or
hospital status if required by special security, custodial,
or supervisory needs; and
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(4) Limit the amount of audio, video, and film equipment or
number of media personnel entering the institution if the
Warden determines that the requested equipment or personnel
would create a disruption within the institution.
(i) In conjunction with the personal interview, if the
member of the media wishes to tour the institution, he or
she must comply with the provisions of 540.61.
(j) Interviews are not subject to auditory supervision.
(28 CFR 540.63.)
6.Arguments in Support
Writing in support of the bill, the Los Angeles County District
Attorney's Office states:
By providing access to the press, AB 1866 would provide an
important check and balance upon the Department of
Corrections and would help to assure that the rights of
prisoners and prison employees are protected.
Also in support of the bill, the California Catholic Conference
of Bishops writes:
Throughout society the media plays an important role. It
is crucial to maintain public accountability of all our
systems during this period of financial and institutional
challenge within our state. Because the prisons are closed
institutions, the media's role in keeping the public
informed about how its tax dollars are spent is all the
more vital. We should have nothing to fear from public
scrutiny in the business of corrections.
7. Arguments in Opposition
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The California Federation of Republican Women writes in
opposition to the bill:
The media has no vested interest in the potential risk
created by airing the candid comments of prisoners without
prior judicial review especially during an ongoing
investigation. While the legislation is specific to
"sentenced prisoners", it is silent on the potential
interviewee involved in another case or appeal currently
under investigation. No responsibility is placed on the
media for conduct, content or potential risks.
For investigations of prison abuse by the media, the State
of California is responsible for such abuses and the
Governor does not need to defer his responsibility to the
media? The media is not the venue to remedy problems of
prison abuse. It is the State's job to supervise,
investigate, discipline and correct wrong conduct on the
part of its employees.
Following the May 20th amendments to the bill, the American
Civil Liberties Union changed their position from support to
oppose unless amended, writing:
The ACLU has reviewed the latest amendments to AB 1866,
dated May 20th, and regretfully must oppose the current
version, unless amended.
As you know, the ACLU has co-sponsored three separate
measures over the past 7 years seeking to reinstate the
media's access to our prison system: SB 434 (Kopp, 1997);
AB 1440 (Migden, 1999), and AB 2101 (Migden, 2000). All
these bills repealed the regulations that have limited the
ability of the press to interview inmates in our
correctional institutions, and received bi-partisan support
by the Legislature.
The recent amendments to AB 1866 have eliminated many of
the provisions which we believe are essential to reinstate
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AB 1866 (Leno)
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the ability of the press to have access to our prisons. In
particular, the amendments eliminate the right to
confidential communications between inmates and the press;
prohibit journalist from using cameras or video recordings
during
face-to-face interviews; and continues to allow interviews
only during the existing limited visitation periods. In
great respect, the current bill does little more than
codify the regulations which we have struggled to overturn.
We know that you share our desire to make certain that the
press can fully exercise their 1st Amendment right to
inform the public about the operations of our prison
system. Your recent support of SB 1164 (Romero) is a
testament to your commitment. We look forward to continue
to work with you and your staff to achieve that goal.
8.Removal of Opposition
Crime Victims United was previously in opposition to the bill,
but they have changed their position to neutral following the
May 20th amendments to the bill, writing:
Crime Victims United of California (CVUC) is pleased to
rescind its opposition and take a NEUTRAL position on AB
1866 (Leno) as amended on Thursday, May 20th?
As amended, AB 1866 will allow for one on one interviews
with inmates, however, it will only allow the reporter to
have a pen or pencil and piece of paper. No audiovisual
equipment such as cameras, video cameras or recorders will
be allowed.
For years, CVUC has advocated against allowing media access
to prisoners because it elevates a criminal to "celebrity"
status, which is unacceptable. Prisoners are in prison
because they committed a crime and to elevate them to
"celebrity" status glamorizes crime and gives prisoners a
chance to once again victimize their victims and victims'
AB 1866 (Leno)
Page 30
families. For victims and their families, it is unbearable
to watch a prisoner attempt to explain why they did what
they did to get put in prison. As a result of the
amendment banning audiovisual equipment in one on one
interviews, our argument that the bill would glamorize the
inmates has been addressed.
Crime Victims United of California appreciates the
willingness of the author to work with us to address our
concerns and is pleased to take a NEUTRAL position on AB
1866 (Leno).
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