BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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2
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SB 525 (Padilla)
As Amended December 16, 2009
Hearing date: January 12, 2010
Penal Code
SM:dl
CELL PHONES AND WIRELESS COMMUNICATIONS DEVICES IN PRISONS
HISTORY
Source: Author
Prior Legislation: SB 434 (Benoit) - 2009, on suspense in
Assembly Appropriations
SB 1730 (Padilla) - 2008, died on suspense in
Senate Appropriations
AB 1267 (Leslie) - 2006, died on suspense in Senate
Appropriations
SB 1831 (Margett) - 2006, died in Senate Public
Safety
Support: Taxpayers for Improving Public Safety; California
Correctional Supervisors Organization; California
Correctional Peace Officers Association; Association of
California Cities Allied with Prison
Opposition:None known
KEY ISSUES
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SHOULD POSSESSION WITH THE INTENT TO DELIVER, OR THE DELIVERY
OF, A CELL PHONE OR OTHER WIRELESS COMMUNICATION DEVICE, TO A
PRISON INMATE BE A CRIME, AS SPECIFIED?
SHOULD VISITORS WHO, UPON BEING SEARCHED OR SUBJECTED TO A METAL
DETECTOR IS FOUND IN POSSESION OF A CELLULAR TELEPHONE OR OTHER
WIRELESS COMMUNICATION DEVICE, BE SUBJECTED TO HAVING THAT
DEVICE CONFISCATED?
(CONTINUED)
SHOULD NOTICE OF THESE PROVISIONS BE REQUIRED TO BE POSTED IN ALL
AREAS WHERE VISITORS ARE SEARCHED PRIOR TO VISITATION WITH AN INMATE
IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS AND REHABILITATION?
PURPOSE
The purpose of this bill is to provide that (1) except as
authorized, any person, except as provided, who possesses with
the intent to deliver, or delivers, to an inmate or ward in the
custody of the Department of Corrections and Rehabilitation
(CDCR), any cellular telephone or other wireless communication
device, is guilty of a misdemeanor, punishable by a fine not to
exceed $5000 for each such device; (2) notwithstanding the
provisions stated above, when any person visiting an inmate 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; and (3) 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 Department of Corrections and Rehabilitation.
Existing law provides the conditions under which inmates in
state prisons may make telephone calls. CDCR is required to
provide inmate telephones for use by general population inmates.
Inmates may place collect telephone calls to persons outside
the facility at designated times and on designated telephones,
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as set forth in local procedures. Limitations may be placed on
the frequency and length of such calls based on the inmate's
privilege group as specified, and to ensure equal access. (15
Cal. Code of Regs. 3282(b).)
Existing law provides that inmates may possess only the personal
property, materials, supplies, items, commodities and
substances, up to the maximum amount, received or obtained from
authorized sources, as permitted in these regulations.
Possession of contraband as defined in Section 3000 may result
in disciplinary action and confiscation of the contraband. (15
Cal. Code of Regs. 3006.)
Existing law defines "contraband" in a prison as "anything which
is not permitted, in excess of the maximum quantity permitted,
or received or obtained from an unauthorized source." (15 Cal.
Code of Regs. 3000.)
This bill provides that, except as otherwise authorized by law,
or when authorized by the person in charge of the prison or
other institution subject to this section, or by an officer of
the institution empowered to give that authorization, except as
noted below, any person who possesses with the intent to
deliver, or delivers, to an inmate or ward in the custody of the
Department of Corrections and Rehabilitation, any cellular
telephone or other wireless communication device, is guilty of a
misdemeanor, punishable by a fine not to exceed $5000 for each
such device.
This bill provides that, notwithstanding the provisions stated
above, when any person visiting an inmate in the custody of the
Department of Corrections and Rehabilitation 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 Department of Corrections and
Rehabilitation.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. The Problem of Cell Phones in Prison
Cell phones in a prison pose an obvious security threat. While
many inmates might try to gain access to a cell phone just to
communicate with friends or family members, other uses could
include gang-related activity ranging from drug dealing to
murder. CDCR has provided the following data to indicate the
number of cell phones recovered in state prisons in the last
three years:
------------------------------
|INSTITUTI| 2006 | 2007 | 2008 |
| ON | | | |
|---------+------+------+------|
|ASP | 3 | 34 | 393 |
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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|---------+------+------+------|
|CAL | 2 | 16 | 103 |
|---------+------+------+------|
|CCC | 4 | 3 | 1 |
|---------+------+------+------|
|CCI | 1 | 2 | - |
|---------+------+------+------|
|CCWF | 0 | 1 | - |
|---------+------+------+------|
|CEN | 0 | 2 | 42 |
|---------+------+------+------|
|CIM | 3 | 6 | 26 |
|---------+------+------+------|
|CIW | 1 | 2 | - |
|---------+------+------+------|
|CMC | 0 | 10 | 14 |
|---------+------+------+------|
|CMF | 1 | 7 | 28 |
|---------+------+------+------|
|COR | 0 | 5 | - |
|---------+------+------+------|
|CRC | 5 | 8 | 124 |
|---------+------+------+------|
|CTF | 45 | 130 | 315 |
|---------+------+------+------|
|CVSP | 1 | 47 | 155 |
|---------+------+------+------|
|DVI | 0 | 1 | 5 |
|---------+------+------+------|
|FSP | 0 | 17 | 144 |
|---------+------+------+------|
|HDSP | 1 | 1 | - |
|---------+------+------+------|
|ISP | 3 | 4 | 173 |
|---------+------+------+------|
|KVSP | 10 | 31 | - |
|---------+------+------+------|
|LAC | 0 | 1 | 11 |
|---------+------+------+------|
|MCSP | 0 | 0 | 1 |
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|---------+------+------+------|
|NKSP | 0 | 2 | 4 |
|---------+------+------+------|
|PBSP | 0 | 2 | 0 |
|---------+------+------+------|
|PVSP | 4 | 5 | 10 |
|---------+------+------+------|
|RJD | 0 | 4 | 27 |
|---------+------+------+------|
|SAC | 29 | 12 | - |
|---------+------+------+------|
|SATF | 1 | 6 | 31 |
|---------+------+------+------|
|SCC | 20 | 30 | 59 |
|---------+------+------+------|
|SOL | 102 | 553 | 801 |
|---------+------+------+------|
|SQ | 5 | 9 | 11 |
|---------+------+------+------|
|SVSP | 20 | 31 | - |
|---------+------+------+------|
|VSPW | 0 | 8 | - |
|---------+------+------+------|
|WSP | 0 | 2 | 0 |
|---------+------+------+------|
| TOTAL | 261 | 992 |2629 |
------------------------------
These data indicate a growing problem. They also indicate that
well over half of all cell phones confiscated in 2008 (1509 out
of 2629) have been discovered at three prisons, Solano (SOL),
Soledad (CTF) and Avenal (ASP). As is detailed below, a large
percentage of the overall number of phones confiscated may be
attributable to one staff member at the prison in Solano.
WHY IS THERE SUCH A DISPARITY BETWEEN THE NUMBER OF CELL PHONES
DISCOVERED AT DIFFERENT PRISONS?
2. How Cell Phones are Getting into Prisons
On June 27, 2007, the Senate Rules Committee held confirmation
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hearings for then-CDCR Secretary James Tilton and Undersecretary
Kingston "Bud" Prunty. At that hearing Committee member Senator
Padilla asked Secretary Tilton to respond to a letter he had
Secretary Tilton send earlier regarding the problem of cell
phones in prisons. Mr. Tilton stated:
It's a significant problem, and not just in California,
but around the nation. I spent last weekend with my
peers from around the country, and that was one of our
topics there.
We have one institution, for example, down in Solano
that we have . . . I just looked at a period of . . . I
can't remember the period, but we had over 600 phones
that we found, over 300 of those were at Solano.
Now we need to track what's bringing them in, whether
it's visitors or staff. But I do know in that
institution we caught staff bringing them in.
Senator Padilla questioned Undersecretary Prunty on the source
of contraband cell phones:
SENATOR PADILLA: And so again, the question I asked a
minute ago, do we have a sense yet for how much it
varies from facility to facility as to whether it's the
personnel bringing the phones into the prison, or it's
visitors bringing the cell phones into the prison?
MR. PRUNTY: I cannot tell you how many can be
attributed to visitors. I don't . . . we haven't been
(able) to determine that yet.
We do know of the ones we were able to investigate, the
majority were brought in by staff.
3. How to Prevent Cell Phones from Getting into Prisons
At that same hearing, when Senator Padilla asked Secretary
Tilton for his recommendations as to what measures could be
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taken to crack down on cell phones in prison, Secretary Tilton
mentioned ". . . if we can find some technology that's not too
expensive . . ."
SENATOR PADILLA: Funny you should mention that.
I mean, when I asked the same question to the Associate
Directors a few weeks ago, the responses were
basically, we need to make the penalties tougher.
Right now if it's a visitor, they lose their visitation
rights. If it's personnel, someone, a member of our
personnel, then they lose their job.
But that's all predicated on finding them, as you said.
That's the challenge.
I mean, any member of the public who comes into this
Capitol has to walk through a metal detector. Any of
us who flies a commercial airplane in the United
States, or anywhere in the world, has to go through a
metal detector. To go to any significant sporting
event nowadays, we're going through metal detectors.
We're searched. Our bags or purses and pockets are
searched.
Is there not an equally strict search or metal
detection infrastructure for visitors in our prisons?
MR. PRUNTY: For visitors, yes.
We have not required our staff to all be processed
through the metal detectors. And the statistics show
of the cell phones found . . . and, by the way, it
isn't a thousand. It's about 550, somewhere in that
range, but it seems it's an awful lot - two-thirds of
those were found at one institution, and we found that
that was probably the product of a particular
individual.
We probably need to take a look at that, at our
policies and how we do screening for everyone that
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comes inside, because there is evidence that some of
our own staff . . .
SENATOR PADILLA: I was going to say, and you say for
everyone that comes inside.
The question I asked had to do with the visitors; the
follow-up was with personnel because . . .
MR. PRUNTY: Yes.
SENATOR PADILLA: Again, Associate Director said it's
not just visitors that's the problem; it's our own
staff.
So, does staff have to go through the same level of
detection and search?
MR. PRUNTY: As of today, no, sir, they don't.
SENATOR PADILLA: Should they?
MR. PRUNTY: If we're going to detect contraband up to
the highest degree - and as you mentioned, everybody
that comes into this building certainly has to go
through a metal detector - that policy certainly needs
to be revisited. And I would suggest that it's not a
bad policy to pursue.
The testimony of the Secretary and Undersecretary of CDCR
established that visitors to state prisons must go through metal
detectors and, despite speculation that cell phones are
nonetheless somehow being smuggled-in by visitors, CDCR has not
documented any such incidents. The testimony further revealed
that prison staff are not required to go through metal detectors
and staff have been caught smuggling cells phones into prisons.
In one prison, it appears, one staff person smuggled in nearly
one-third of all cell phones discovered in the entire state
prison system. Undersecretary Prunty testified that requiring
staff to go through metal detectors would be ". . . not a bad
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policy to pursue."
In 2008, Senator Padilla introduced SB 1730, which would have
required all persons entering a state correctional facility to
be screened through a metal-detector. That bill passed this
Committee and was held on suspense in the Senate Appropriations
Committee.
An alternative to requiring all staff to go through metal
detectors every day is periodic but unannounced inspections of
staff. Such an inspection recently took place at Avenal State
Prison. Although only one-third of the staff at the prison was
subjected to that inspection, it nevertheless resulted in the
discovery of 13 cell phones.
[Warden James] Hartley said staff members accepted the
unannounced search. "They understand the need for us
keeping this place clean," he said. The California
Correctional Peace Officers Association backs such
staff searches, association spokesman Ryan Sherman
said. But the prison needs to assign enough staff so
security lines don't back up and make employees late
for work, he said. Sherman did not hear of any
problems in Avenal, but he said a similar search
created delays at Folsom State Prison. (Search of
Avenal Prison Workers Finds Contraband, Fresno Bee ,
March 12, 2009.
http://www.fresnobee.com/local/story/1259050.html )
Lastly, in the Rules Committee hearing discussed above,
then-CDCR Secretary Tilton mentioned the possibility of a
technological fix. A solution that involves targeted electronic
jamming of cell phones in prisons is the subject of much
interest around the country. Two bills currently pending in
Congress, S 231 (Hutchinson), the "Safe Prison Communications
Act of 2009" and its companion HR 560 (Brady), would amend the
Federal Communications Act to "permit targeted interference with
mobile radio services within prison facilities." According to
the Web site for the National Conference of State Legislatures:
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HR 560 amends Section 333 of the Communications Act of
1943 (47 U.S.C. 333) and adds a waiver provision,
allowing the installation of jamming devices in a
prison (or other correctional facility) for 10 years.
The Director of the Federal Bureau of Prisons or the
Governor must petition the Federal Communications
Commission (FCC) for this waiver or its renewal after
10 years. The FCC will not charge a fee for this
petition. The FCC must provide copies of received
petitions to commercial mobile service providers in the
relevant area and maintain a public database record of
received petitions. Once a waiver is granted to a
particular prison facility, it is not transferable to
any other facility.
( http://www.ncsl.org/standcomm/sclaw/hr560summary.htm )
While this could be a promising solution, the feasibility and
cost of technology that would permit cell phone jamming within a
precise geographic area is not clear at this time. According to
the Washington Post, corrections officials in the District of
Columbia planned a test of such technology but this had to be
"put on hold" due to a legal challenge. Similar tests have
taken place in Texas and South Carolina, but the results are
unknown.
( http://www.washingtonpost.com/wp-dyn/content/article/2009/01/31/AR2
009013101548_2.html )
HOW ARE CELL PHONES GETTING INTO PRISONS?
4. What This Bill Would Do
This bill would make possession with the intent to distribute a
cell phone or other wireless communication device to an inmate
or ward in a state correctional institution by anyone, except as
explained below, a misdemeanor, punishable by a fine of up to
$5000 for each such device.
In the case of a person visiting an inmate who is found to be in
possession of a cell phone or wireless communication device, the
visitor would not be subject to arrest or a criminal conviction
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but the device would be subject to confiscation as contraband.
Warnings to that effect would be required to be posted in
visiting areas.
The approach taken in this bill accomplishes several objectives.
To adequately address the very real problem of cell phones in
prison, it is necessary to intercept them at their source. All
indications are that the primary source of cell phones being
smuggled into prisons is prison staff. CDCR has informed
Committee staff that prison staff found to have been smuggling
in cell phones are, in some cases, not sufficiently deterred by
the mere threat of losing their job. The motive appears to be
financial and the penalty this bill applies, a criminal
conviction and a fine of $5000 for each confiscated device, will
provide a strong financial deterrent to anyone considering this
behavior. When a fine of $5000 is imposed on a criminal
defendant, the plethora of penalty assessments applied to all
criminal fines currently amount to approximately 280% of the
fine amount. Therefore the actual cost to a person fined $5000
would be approximately $19,000. And, if more than one device is
confiscated, this fine could be multiplied by the number of
devices found.
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This bill provides an exception for family and friends who go to
an institution to visit an inmate and, while being searched or
run through a metal detector, are found to have a cell phone in
their possession. As Undersecretary Prunty testified, family
members of inmates, unlike CDCR staff, currently must go through
metal detectors before entering a prison. Unlike other forms of
contraband such as controlled substances, cell phones have
become a staple of modern life. Many, if not most adults, now
carry a cell phone and even children are carrying them in
increasing numbers. Just as is the case with people being
screened at airports or at the Capitol Building itself,
inevitably a certain number people being screened will, despite
posted instructions, inadvertently leave a cell phone on their
person causing the metal detector to sound an alert.
Visitors are currently prohibited from bringing cell phones into
prison, and a violation may result in the visitor being banned
from further visits. This bill would add to that penalty the
cost of having the cell phone potentially confiscated.
Visiting a family member in prison is never an easy task. The
inmate and all adult visitors must fill out and sign a
questionnaire and mail it to the prison staff. The prison
staff must then approve the questionnaire before the visitor
may visit. This should take approximately 30 working days.
(CDCR Inmate Visiting Guidelines,
http://www.cdcr.ca.gov/Visitors/docs/InmateVisitingGuidelines.p
df .) Visiting family members often have to travel hundreds of
miles to the remote locations where prisons are located and
wait for hours to be processed in for a visit that may be
called off at the last minute or cut short for a variety of
reasons unrelated to the inmate or the visitor. And yet,
experts agree about the importance of inmates maintaining ties
to their families as a critical aspect of any rehabilitation
efforts.
The Committee has been presented no evidence of visitors who are
properly screened through metal detectors being responsible for
the problem of cell phones getting into prisons. In light of
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the inevitable unintended consequence of visitors being held
criminally liable for an inadvertence if this exception were not
present, the exception for properly screened visitors contained
in this bill appears consistent with the objective of the bill:
protecting the security of the institutions and the safety of
staff and inmates.
DOES THIS BILL ADDRESS THE ISSUE OF STOPPING CELL PHONE
SMUGGLING AT ITS SOURCE?
DOES THIS BILL ADEQUATELY PROTECT AGAINST THE PROBLEM OF
INADVERTENT CELL PHONE POSSESSION BY VISITORS?
5. How This Bill Differs From SB 434 (Benoit)
Last year this Committee heard and approved SB 434 (Benoit),
which was later held in Assembly Appropriations on suspense. SB
434 was substantially similar to this bill. The two differences
are (1) under SB 525 liability is narrowed to those who possess
a wireless communication device with the intent to deliver it to
an inmate or ward, (eliminating liability for mere possession of
a wireless communication device by an inmate or ward) and (2) SB
525 specifies that each wireless device involved constitutes a
separate offense.
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