BILL ANALYSIS
SB 434
Page 1
Date of Hearing: June 16, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 434 (Benoit) - As Amended: June 8, 2009
As Proposed to be Amended in Committee
SUMMARY : Creates a misdemeanor for possession of a cellular
telephone device or wireless communication device with the
intent to deliver that device to an inmate or ward in the
custody of the California Department of Corrections and
Rehabilitation (CDCR). Specifically, this bill :
1)States any inmate or ward who possesses any cellular telephone
or other wireless communication device, or any component
thereof, including, but not limited to, subscriber identity
modules (SIM) cards and memory storage devices, or any person
who possesses with the intent to deliver, or delivers, to an
inmate or ward in the custody of CDCR, any cellular telephone
or other wireless communication device or component,
including, but not limited to, SIM cards and memory storage
devices, is guilty of a misdemeanor, punishable by a fine not
to exceed $5,000.
2)States if a person visiting an inmate or ward in the custody
of the CDCR who, upon being searched or subjected to a metal
detector, is found to be in possession of a cellular telephone
or other wireless communication device, that device shall be
subject to confiscation. Notice of this provision shall be
posted in all areas where visitors are searched prior to
visitation with an inmate in the custody of the CDCR.
EXISTING LAW :
1)Authorizes the sheriff in each county to establish, maintain
and operate a store in connection with the county jail and for
this purpose may purchase confectionery, tobacco and tobacco
users' supplies, postage and writing materials, and toilet
articles and supplies and to sell these goods, articles, and
supplies for cash to inmates in the jail. Any profit shall be
deposited in an inmate welfare fund to be kept in the treasury
SB 434
Page 2
of the county, as well as 10% of all gross sales of inmate
hobby craft and inmate phone revenues. Any funds that are not
needed for the welfare of the inmates may be expended for the
maintenance of county jail facilities. Maintenance of county
jail facilities may include, but is not limited to, the salary
and benefits of personnel used in the programs to benefit the
inmates, including, but not limited to, education, drug and
alcohol treatment, welfare, library, accounting, and other
programs deemed appropriate by the sheriff. An itemized
report of these expenditures shall be submitted annually to
the board of supervisors. [Penal Code Section 4025.]
2)States that any person who knowingly brings into any state
prison or other institution under the jurisdiction of CDCR, or
into any prison camp, prison farm, or any other place where
prisoners or inmates of these institutions are located under
the custody of prison or institution officials, officers, or
employees, or into any county, city and county, or city jail,
road camp, farm or any other institution or place where
prisoners or inmates are being held under the custody of any
sheriff, chief of police, peace officer, probation officer, or
employees, or within the grounds belonging to any institution
or place, any alcoholic beverage, any drugs, other than
controlled substances, in any manner, shape, form, dispenser,
or container, or any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming any drug other than controlled substances, without
having authority so to do by the rules of CDCR, the rules of
the prison, institution, camp, farm, place, or jail, or by the
specific authorization of the warden, superintendent, jailer,
or other person in charge of the prison, jail, institution,
camp, farm, or place, is guilty of a felony. [Penal Code
Section 4573.5.]
3)States any person in a local correctional facility who
possesses a wireless communication device, including, but not
limited to, a cellular telephone, pager, or wireless Internet
device, who is not authorized to possess that item is guilty
of a misdemeanor, punishable by a fine of not more than
$1,000. [Penal Code Section 4575(a).]
4)Provides any person housed in a local correctional facility
who possesses any tobacco products in any form, including
snuff products, smoking paraphernalia, any device that is
intended to be used for ingesting or consuming tobacco, or any
SB 434
Page 3
container or dispenser used for any of those products, is
guilty of an infraction, punishable by a fine not exceeding
$250. Money collected pursuant to this section shall be
placed into the inmate welfare fund, as specified. [Penal
Code Section 4575(b) and (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Currently,
there is no specific penalty against prisoners or their
criminal syndicate that work to smuggle cell phones into
prisons. Over the past several years, more and more cell
phones have been found in California prisons. In 2007, there
were 1,400 cell phones confiscated from state prisoners, which
doubled to 2,800 in 2008. Just in January of 2009 alone, 369
cell phones have been confiscated. At this rate, we could
expect over 4,000 cell phones to be confiscated by the end of
2009.
"Inmates smuggle these into prison or coax others to sneak the
phones in for them when they come to visit. With cell phones
in their possession, prisoners can utilize them to call in
crimes, plan escapes, organize riots, or simply communicate
with other prisoners with cell phones. Smuggled cell phones
empower dangerous gangs, including organized criminal
networks, which are deeply rooted in our prison system. With
such a strong increase in violent crimes committed over the
past few months, it is important to ensure that our prisons
are free of cell phones which can be used to call in
kidnappings, thefts, and mass murders.
"Current law [SB 655 (Margett), Chapter 655, Statutes of 2007]
makes it a misdemeanor, with a fine of less than $1,000, for
the unauthorized possession of a cell phone in county jail
only. SB 434 would remedy this deficiency in state law by
making it a misdemeanor, with a maximum $5,000 fine, for a
prisoner to possess a cell phone in any state prison.
Furthermore, SB 434 would make it a misdemeanor for any
individual to attempt to smuggle a cell phone into a state
prison."
2)Office of the Inspector General (OIG) Report : In May 2009,
the OIG published a report, "Inmate Cell Phone Use Endangers
SB 434
Page 4
Prison Security and Public Safety". The report stated,
"According to numerous California Department of Corrections
and Rehabilitation (Department) officials, the possession of
cell phones and electronic communication devices by
California's inmates is one of the most significant problems
facing the Department today.
"Therefore, in February 2009, the Office of the Inspector
General (OIG) began a review into the proliferation of
contraband cell phones in California prisons and how their use
puts Department staff, inmates, and the general public at
risk. During 2006, correctional officers seized approximately
261 cell phones in the state's prisons and camps. However, by
2008, that number increased ten-fold to 2,811 with no end in
sight. Inmates' access to cell phone technology facilitates
their ability to communicate amongst themselves and their
associates outside of prison to plan prison assaults, plot
prison escapes, and orchestrate a myriad of other illegal
activity.
"In addition, these devices can provide an inmate unrestricted
and unmonitored access to the Internet, whereby they can
communicate with unsuspecting victims, including minors.
According to the Department, inmates are paying those involved
in smuggling cell phones into California prisons between $500
and $1,000 per phone. There are currently no criminal
consequences for the introduction or possession of cell phones
in prison, making this activity merely an administrative
violation.
"Furthermore, current security entrance procedures provide ample
opportunities for staff and visitors to bring contraband into
prison facilities without fear of discovery. Therefore, the
introduction of cell phones into state prisons is a low-risk,
high-reward endeavor. In addition to staff, other conduits
for smuggling cell phones include visitors, outside
accomplices, minimum support facility inmates working outside
perimeter fences, and contracted employees. In an effort to
combat this growing threat, the Department is supporting
legislation making it a crime to introduce or possess cell
phones in California's prisons. Unfortunately, previous
efforts to pass similar legislation have failed. In addition,
technology that detects or jams cell phone signals is
commercially available but potentially expensive and would
require federal authorization to place into use. Other
SB 434
Page 5
detection methods that have been used or are now in sporadic
use, such as hands-on searches, metal detectors, and x-ray
equipment, are more labor intensive and would require an
increase in staffing and funding."
The OIG made several recommendations in its report to ameliorate
the harm caused by the proliferation of cell phones in prisons
and found, "The dramatic rise in cell phones confiscated by
CDCR staff is a clear indicator that the current methods used
to interdict the introduction of cell phones are ineffective.
"To truly eradicate cell phone usage, the Office of the
Inspector General recommends that the Secretary of the
Department take the following actions: continue efforts to
seek legislative change to make the introduction or possession
of cell phones in all correctional facilities a criminal
offense; collaborate with other state and federal correctional
agencies to lobby the Federal Communications Commission (FCC)
for an exemption in using cell phone jamming devices; request
additional funds to purchase cell phone detection solutions
and jamming devices (if subsequently approved by the FCC);
request resources and funds to conduct airport-style screening
including metal and canine detection, and, when necessary,
manual searches of persons entering California prison
facilities; restrict the size of all carrying cases being
brought into the secure areas of prisons by all persons
including backpacks, briefcases, purses, ice chests, lunch
boxes, file boxes, etc., so that they may be x-rayed; require
staff and visitors to place all personal items in see-through
plastic containers; request additional resources and funds to
increase detection activities similar to 'Operation
Disconnect;' ensure all quarterly contract vendor packages be
shipped directly to prisons and correctional camps; and
implement an anonymous cell phone smuggling reporting system
for employees and inmates."
3)Arguments in Support : According to the California Department
of Corrections and Rehabilitation , "Cell phones and other
wireless communications devices in the hands of inmates or
wards creates a safety and security issue for the inmates,
wards, and staff within the institutions and for the public
at large. Inmates in possession of cell phones are able to
make unmonitored and unauthorized calls to the public,
resulting in dangerous criminal activity, including attempts
to escape, drug trafficking, victim harassment, gang activity,
SB 434
Page 6
murder for hire, and numerous other criminal acts without the
institution's capability to monitor or terminate these
activities. By creating a criminal penalty for the
introduction of cell phones or other wireless devices into
State correctional facilities. SB 434 will deter criminal
activity as well as increase the safety and security of
inmates, wards, staff, crime victims and local law
enforcement."
4)Prior Legislation :
a) SB 655 (Margett), Chapter 655, Statutes of 2008,
prohibits possession or use of tobacco products and
wireless communication devices by inmates under the
jurisdiction of CDCR.
b) AB 1923 (Anderson), Chapter 190, Statutes of 2008,
provides that any person housed in a local correctional
facility who possesses a handcuff key without authorization
is guilty of a misdemeanor, punishable by up to six months
in jail, a fine of up to $1,000, or by both.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Cities Allied with Prisons
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California Department of Corrections and Rehabilitation
San Bernardino County Sheriff's Department
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744