BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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0
6
SB 1066 (Oropeza) 6
As Amended March 22, 2010
Hearing date: April 6, 2010
Penal Code
SM:dl
CELL PHONES IN PRISON
HISTORY
Source: Author
Prior Legislation: SB 525 (Padilla) - Pending in Assembly Public
Safety
SB 434 (Benoit) - 2009, died on suspense in
Assembly Appropriations
SB 1730 (Padilla) - 2008, died on suspense in
Senate Appropriations
SB 1267 (Leslie) - 2006, died on suspense in Senate
Appropriations
SB 1831 (Margett) - 2006, died in Senate Public
Safety
Support: The Friends Committee on Legislation of California;
Taxpayers for Improving Public Safety; Life Support
Alliance
Opposition:None Known
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR)
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BE REQUIRED TO OVERSEE AND CONDUCT PERIODIC AND RANDOM SEARCHES
OF ALL EMPLOYEES AND VENDORS ENTERING ALL OF THE STATE PRISONS
UNDER THE JURISDICTION OF CDCR FOR CONTRABAND?
SHOULD CDCR BE REQUIRED, IN CONSULTATION WITH THE INSPECTOR
GENERAL, TO PROVIDE A WRITTEN REPORT TO THE LEGISLATURE
QUARTERLY REGARDING THE RESULTS OF THE SEARCHES, INCLUDING ANY
DISCIPLINARY ACTION TAKEN IN RESPONSE TO THE DISCOVERY OF ANY
CONTRABAND?
(CONTINUED)
SHOULD THE INSPECTOR GENERAL BE REQUIRED TO OVERSEE THE SEARCHES FOR
CONTRABAND CONDUCTED BY THE DEPARTMENT PURSUANT TO THIS BILL AND TO
ENSURE THE INTEGRITY OF THE PROCESS AND OF THE SEARCHES, AND THE
ACCURACY OF THE REPORTS SUBMITTED?
PURPOSE
The purpose of this bill is to (1) require the Department of
Corrections and Rehabilitation (CDCR) to oversee and conduct
periodic and random searches of all employees and vendors
entering all of the state prisons under the jurisdiction of the
CDCR for contraband, as specified; (2) require CDCR to, in
consultation with the Inspector General, provide a written
report to the Legislature quarterly regarding the results of the
searches, including any disciplinary action taken in response to
the discovery of any contraband; and (3) require the Inspector
General to oversee the searches for contraband conducted by CDCR
and to ensure the integrity of the process and of the searches,
and the accuracy of the reports submitted, as specified.
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.) Possession of a cellular telephone or
any other electronic communications device by an inmate is
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specifically prohibited. (15 Cal. Code of Regs. 3000(c)(19).)
Existing law creates the office of the Inspector General
and requires the Inspector General to review departmental
policy and procedures, conduct audits of investigatory
practices and other audits, be responsible for
contemporaneous oversight of internal affairs
investigations and the disciplinary process, and conduct
investigations of the CDCR, as requested by either the
Secretary of the CDCR or a Member of the Legislature,
pursuant to the approval of the Inspector General under
policies to be developed by the Inspector General. The
Inspector General may, under policies developed by the
Inspector General, initiate an investigation or an audit on
his or her own accord. (Penal Code 6126(a)(1).)
This bill would require the CDCR to oversee and conduct
periodic and random searches of all employees and vendors
entering all of the state prisons under the jurisdiction of
the department for contraband. These searches would be
required to include random searches of all property,
personal or otherwise, brought into the prison by those
individuals.
This bill would require CDCR to, in consultation with the
Inspector General, provide a written report to the
Legislature quarterly detailing the following:
The names of the prisons where the searches took place.
The dates of the searches.
The shifts during which the searches took place.
The number of employees searched.
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The number of employees scheduled to work on those
shifts.
The number of vendors searched.
The number of vendors scheduled to arrive during those
shifts.
The number of cell phones discovered.
The number of items of portable computer equipment
found, including, but not limited to, iPods, MP3 players,
DVD players, CD players, CDs, and portable video game
players.
Tobacco products found, including lighters and matches.
Illegal substances found, broken out by type of
substance.
The report would be required to also contain a general comment
section for use by the Inspector General and the department to
discuss the issues they find relevant to the searches and to
include a section detailing the actions taken as a result of the
discovery of contraband possessed by an employee or vendor and
the results of any disciplinary process resulting from the
discovery of contraband.
The report is to be submitted in accordance with specified
requirements of the Government Code.
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This bill would require the Inspector General to oversee the
searches for contraband conducted by the department pursuant to
this bill and to ensure the integrity of the process and of the
searches, and the accuracy of the reports submitted, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
---------------------------
<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The number of cell phones confiscated in prison in
2006 was 261. Last year, 6,995 cell phones were
confiscated. That constitutes an increase of 2,580
percent. Reports have inmates paying $500 to $1000
per phone.
The California Senate Rules Committee for the last
several years has focused on cell phones entering
prisons during the confirmation hearings of CDCR
officials.
In May of 2009, the Office of the Inspector General
(OIG) sent a special report entitled "Inmate Cell
Phone Use Endangers Prison Security and Public
Safety" to CDCR Secretary Matthew Cate. Among other
things the report found, "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 activities. In addition, these devices can
provide an inmate unrestricted and unmonitored
access to the Internet, whereby they can communicate
with unsuspecting victims, including minors."
The report also found that, "In addition to staff,
other conduits for smuggling cell phones include
visitor, outside accomplices, minimum support
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facility inmates working outside perimeter fences,
and contracted employees."
In July of 2008 CDCR's Department of Internal
Affairs conducted surprise screenings for two days
called "Project Disconnect." During these searches,
one employee's vehicle was searched and fifty cell
phones, labeled with the inmates' names, were found.
Since November of 2009, CDCR has continued the
random once a month searches of employees entering
every prison in California with "Operation
Disconnect."
SB 1066 codifies the activities of "Operation
Disconnect" into law and includes vendors as those
subject to the search. SB 1066 requires the OIG to
oversee the searches to ensure the integrity of the
process. Finally, SB 1066 requires that CDCR and
the OIG submit a report to the Legislature detailing
the finding of the searches as well as a general
comment section.
2. 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
four years:
-------------------------------------
|INSTITUTI| 2006 | 2007 | 2008 | 2009 |
| ON | | | | |
|---------+------+------+------+------|
|SP | 3 | 34 | 393 | 939 |
|---------+------+------+------+------|
|CAL | 2 | 16 | 103 | 563 |
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|---------+------+------+------+------|
|CCC | 4 | 3 | 1 | 29 |
|---------+------+------+------+------|
|CCI | 1 | 2 | - | 10 |
|---------+------+------+------+------|
|CCWF | 0 | 1 | - | 1 |
|---------+------+------+------+------|
|CEN | 0 | 2 | 42 | 251 |
|---------+------+------+------+------|
|CIM | 3 | 6 | 26 | 208 |
|---------+------+------+------+------|
|CIW | 1 | 2 | - | 10 |
|---------+------+------+------+------|
|CMC | 0 | 10 | 14 | 96 |
|---------+------+------+------+------|
|CMF | 1 | 7 | 28 | 54 |
|---------+------+------+------+------|
|COR | 0 | 5 | - | 81 |
|---------+------+------+------+------|
|CRC | 5 | 8 | 124 | 741 |
|---------+------+------+------+------|
|CTF | 45 | 130 | 315 | 458 |
|---------+------+------+------+------|
|CVSP | 1 | 47 | 155 | 263 |
|---------+------+------+------+------|
|DVI | 0 | 1 | 5 | 42 |
|---------+------+------+------+------|
|FSP | 0 | 17 | 144 | 247 |
|---------+------+------+------+------|
|HDSP | 1 | 1 | - | 6 |
|---------+------+------+------+------|
|ISP | 3 | 4 | 173 | 238 |
|---------+------+------+------+------|
|KVSP | 10 | 31 | - | 243 |
|---------+------+------+------+------|
|LAC | 0 | 1 | 11 | 95 |
|---------+------+------+------+------|
|MCSP | 0 | 0 | 1 | 35 |
|---------+------+------+------+------|
|NKSP | 0 | 2 | 4 | 10 |
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|---------+------+------+------+------|
|PBSP | 0 | 2 | 0 | 3 |
|---------+------+------+------+------|
|PVSP | 4 | 5 | 10 | 58 |
|---------+------+------+------+------|
|RJD | 0 | 4 | 27 | 104 |
|---------+------+------+------+------|
|SAC | 29 | 12 | - | 142 |
|---------+------+------+------+------|
|SATF | 1 | 6 | 31 | 59 |
|---------+------+------+------+------|
|SCC | 20 | 30 | 59 | 189 |
|---------+------+------+------+------|
|SOL | 102 | 553 | 801 | 593 |
|---------+------+------+------+------|
|SQ | 5 | 9 | 11 | 42 |
|---------+------+------+------+------|
|SVSP | 20 | 31 | - | 174 |
|---------+------+------+------+------|
|VSPW | 0 | 8 | - | 14 |
|---------+------+------+------+------|
|WSP | 0 | 2 | 0 | 20 |
|---------+------+------+------+------|
|CCFA | | | | 228 |
|---------+------+------+------+------|
|COCF | | | | 186 |
|---------+------+------+------+------|
| TOTAL | 261 | 992 | 2629 |6,995 |
-------------------------------------
These data indicate a growing problem, with the number of cell
phones confiscated more than doubling in the last year.
3. How Cell Phones are Getting into Prisons
On June 27, 2007, the Senate Rules Committee held confirmation
hearings for then CDCR Secretary James Tilton and Undersecretary
Kingston "Bud" Prunty. At that hearing, committee member
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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.
4. 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
taken to crack down on cell phones in prison, Secretary Tilton
mentioned ". . . if we can find some technology that's not too
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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
comes inside, because there is evidence that some of
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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 2008, 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 policy to pursue."
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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.
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:
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
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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 )
5. The Approach Taken By This Bill
An alternative to requiring all staff to go through metal
detectors every day is periodic but unannounced inspections of
staff. Such an inspection took place at Avenal State Prison in
early 2009. 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 )
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Beginning in November 2009, the practice of unannounced searches
of staff has been adopted by the Department as a regular
practice in "Operation Disconnect," whereby the Department has
directed Wardens at each CDCR institution to conduct random
searches at the front entrance of each institution on a monthly
basis. This bill would codify that practice and require the
Inspector General to oversee the searches and "ensure the
integrity of the process and of the searches, and the accuracy
of the reports?" The bill specifies that all CDCR employees and
vendors entering all state prisons under the Department's
jurisdiction would be subject to these random searches. The
bill does not specify how often the searches should take place.
HOW ARE CELL PHONES GETTING INTO PRISONS?
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION BE
REQUIRED TO CONDUCT RANDOM SEARCHES OF ITS EMPLOYEES AND VENDORS
ENTERING THE PRISONS?
SHOULD THE INSPECTOR GENERAL BE REQUIRED TO OVERSEE THESE
SEARCHES TO ENSURE THE INTEGRITY OF THE PROCESS?
6. Other Approaches: SB 525(Padilla) and SB 434(Benoit)
In recognition of the fact that smuggling cell phones to inmates
has become a lucrative endeavor for some CDCR employees and
contractors, SB 525(Padilla) follows the path taken by SB 434
(Benoit) last year in creating a new misdemeanor for possession
of a cell phone in a prison with the intent to deliver it to an
inmate. This new offense would carry a penalty of a fine of up
to $5,000 per phone. SB 525 was approved by this Committee in
January of this year and is currently pending in the Assembly
Public Safety Committee. The approach taken in SB 525 and the
approach taken in this bill appear to be complimentary in that
the misdemeanor penalties that would be applicable pursuant to
SB 525 depend on the cell phones being discovered. This bill,
by requiring CDCR to conduct random searches of its employees,
would appear to provide the mechanism to make those discoveries.
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IS THE APPROACH TAKEN IN THIS BILL TO DISCOVER CELL PHONES BEING
SMUGGLED INTO PRISONS CONSISTENT WITH THE NEW MISDEMEANOR
PENALTIES FOR CELL PHONE SMUGGLING PREVIOUSLY APPROVED BY THIS
COMMITTEE IN SB 525?
***************