BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1270 (Ammiano) 0
As Amended January 4, 2012
Hearing date: June 12, 2012
Penal Code
SM:mc
MEDIA ACCESS TO PRISONERS
HISTORY
Source: Californians for a Responsible Budget; California
Coalition for Women
Prisoners; Center for Young Women's Development; Youth Justice
Coalition
Prior Legislation: SB 304 (Romero) - 2007-2008, vetoed
SB 1521 (Romero) - 2006-2007, vetoed
SB 239 (Romero) - 2005-2006, vetoed
SB 698 (Haynes) - 2005-2006, vetoed
SB 1164 (Romero) - 2003-2004, vetoed
AB 2101 (Migden) - 1999-2000, vetoed
SB 1440 (Migden) - 1999-2000, vetoed
SB 434 (Kopp) - 1997-1998, vetoed
Support: American Civil Liberties Union of California; California
Attorneys for Criminal Justice; California Broadcasters
Association; California Catholic Conference;
California Correctional Peace Officers Association;
California Families to Abolish Solitary Confinement;
California Newspaper Publishers Association; California
Public Defenders Association; Drug Policy Alliance; Ella
Baker Center for Human Rights; Fair Chance Project;
Friends Committee on Legislation of California; Legal
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Services for Prisoners with Children; Lifers' Education
Fund; Media Alliance; The Other Death Penalty Project;
Pacific Media Workers Guild; CCNMA: Latino Journalists
of California; Transgender, Gender Variant, & Intersex
Justice; Pacific Foundation; National Radio
Project/Making Contact; Instituto de Educat�on Popular
del Sur de California; Progressive Christians Uniting;
numerous individuals
Opposition:Crime Victims Action Alliance; Sacramento County
District Attorney; one individual
Assembly Floor Vote: Ayes 47 - Noes 22
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION (CDCR) BE
REQUIRED, UPON REASONABLE NOTICE, TO PERMIT REPRESENTATIVES OF THE
NEWS MEDIA, AS DEFINED, TO INTERVIEW PRISONERS, AS SPECIFIED?
SHOULD PRISON INMATES BE PROHIBITED FROM RECEIVING COMPENSATION OR
ANYTHING OF VALUE FOR INTERVIEWS WITH THE NEWS MEDIA?
SHOULD THE WARDEN BE AUTHORIZED TO DENY AN INTERVIEW WITH A
PARTICULAR PRISONER IF IT IS DETERMINED THAT THE INTERVIEW WOULD
POSE AN IMMEDIATE AND DIRECT THREAT TO THE SECURITY OF THE
INSTITUTION OR THE PHYSICAL SAFETY OF A MEMBER OF THE PUBLIC?
IF THE WARDEN OR THE WARDEN'S DESIGNEE GRANTS A REQUEST FOR AN
INTERVIEW, SHOULD CDCR STAFF BE REQUIRED TO NOTIFY VICTIMS OF THE
INMATE, AS SPECIFIED?
SHOULD CDCR BE AUTHORIZED TO ESTABLISH REASONABLE TIME, PLACE, AND
MANNER RESTRICTIONS FOR PRISON INTERVIEWS, AS SPECIFIED?
SHOULD IT BE PROHIBITED TO RETALIATE AGAINST A PRISONER OR PAROLEE
FOR PARTICIPATING IN A VISIT BY, OR COMMUNICATING WITH, A
REPRESENTATIVE OF THE NEWS MEDIA?
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PURPOSE
The purpose of this bill is to (1) require the Department of
Corrections and Rehabilitation (CDCR), upon reasonable notice,
to permit representatives of the news media to interview
prisoners in person, including prearranged interviews with
specified prisoners and individuals encountered by a
representative of the news media, as defined, while covering a
facility tour, activity, event, or program; (2) allow a
representative of the news media to use materials and equipment
necessary to conduct the interview, which shall be subject to
search; (3) require a news media representative who desires to
conduct a prearranged interview at an institution to make the
request within a reasonable time period prior to the requested
interview, as specified; (4) require CDCR staff to notify an
inmate of each interview request, and no interview shall be
permitted without the inmate's consent; (5) prohibit an inmate
from receiving compensation or anything of value for interviews
with the news media; (6) require that the warden or his or her
designee, within 48 hours of receiving an interview request,
notify the news media representative making the request whether
the interview has been granted; (7) require that, after the
warden or the warden's designee grants a request for an
interview, staff must, at least two business days prior to the
interview, notify any victims of the inmate who have previously
notified the warden or CDCR that they wish to be contacted in
the event of an interview request that an interview has been
granted; (8) authorize the warden or his or her designee to deny
an interview with a particular prisoner if it is determined that
the interview would pose an immediate and direct threat to the
security of the institution or the physical safety of a member
of the public and require that, within a reasonable period of
time, the representative of the news media shall receive an
explanation of the specific reasons for a denial; (9) authorize
CDCR to establish reasonable time, place, and manner
restrictions for prison interviews, as specified; (10) provide
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that no prisoner or parolee may be retaliated against for
participating in a visit by, or communicating with, a
representative of the news media; and (11) provide that
interviews shall not be subject to auditory monitoring.
Current law vests the Secretary of the CDCR with the
supervision, management, and control of state prisons. The
Secretary is also responsible for the care, custody, treatment,
training, discipline, and employment of a person confined in
those prisons. The Secretary may decide the rules and
regulations for the administration of the prisons. (Penal Code
�� 5054; 5058.)
Current law requires a person sentenced to imprisonment in a
state prison may only be denied of civil rights reasonably
related to legitimate penological interests. (Penal Code �
2600.)
Current law allows an inmate in a California state prison to
correspond confidentially with a 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.
(Penal Code � 2601.)
Current law prohibits a prisoner from participating in a
specific face-to-face interview with a media representative.
(Cal. Code of Regulations, Title 15, � 3261.5(a)(2).)
Current law permits a media representative to engage in random
face-to-face interviews of individuals involved in a specific
activity or program or encountered while covering a facility
activity or event, and shall be limited to the time, areas and
segments of the facility population designated by the
institution head. (Cal. Code of Regulations, Title 15, �
3261.5(a)(1).)
Current law prohibits the use of cameras or recording equipment
without prior approval of the institution head or designee.
(Cal. Code of Regulations, Title 15, � 3261.5(b).)
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This bill would require CDCR, upon reasonable notice, to permit
representatives of the news media to interview prisoners in
person, including prearranged interviews with specified
prisoners and individuals encountered by a representative of the
news media while covering a facility tour, activity, event, or
program.
This bill provides that during any interview with a prisoner, a
representative of the news media may use materials and equipment
necessary to conduct the interview, including, but not limited
to pens, pencils, papers, and audio and video recording devices.
These items shall be subject to search for the purpose of
protecting against an immediate and direct threat to the
security of the institution.
This bill provides that a news media representative who desires
to conduct a prearranged interview at an institution shall make
the request within a reasonable time period prior to the
requested interview in writing to the warden or through contact
with the institution's public relations office.
This bill provides that CDCR staff shall notify an inmate of
each interview request, and no interview shall be permitted
without the inmate's consent.
This bill provides that an inmate may not receive compensation
or anything of value for interviews with the news media.
This bill provides that the warden or the warden's designated
public relations or custodial official shall, within 48 hours of
receiving an interview request, notify the news media
representative making the request whether the interview has been
granted.
This bill provides that, after the warden or the warden's
designated public relations or custodial official grants a
request for an interview, staff shall, at least two business
days prior to the interview, notify any victims of the inmate
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who have previously notified the warden or Department of
Corrections and Rehabilitation that they wish to be contacted in
the event of an interview request that an interview has been
granted.
This bill authorizes the warden or his or her designee to deny
an interview with a particular prisoner if it is determined that
the interview would pose an immediate and direct threat to the
security of the institution or the physical safety of a member
of the public. Within a reasonable period of time, the
representative of the news media shall receive an explanation of
the specific reasons for the denial. In order to ensure the
security of the institution, the physical safety of the public,
and the efficient administration of news media interviews, 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,
limitations on the amount of audio, video, and film equipment
entering the facility for the interview, and arrangements for
pool interviews if the number of journalists requesting to
interview any one prisoner is excessive.
This bill 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,
transferred to another prison against his or her wishes, or
otherwise retaliated against, for participating in a visit by,
or communicating with, a representative of the news media.
This bill provides that interviews shall not be subject to
auditory monitoring.
This bill defines, "representative of the news media" as a
journalist who works for, or is under contract to, a 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
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engaged in the gathering of information for distribution to the
public.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Need for This Bill
According to the author:
The 2011-2012 state budget allocates $9.2 billion in
taxpayer money to CDCR, yet public information
regarding our prisons is limited by CDCR's restrictive
media regulations. Media representatives can only
conduct random interviews with a pool of inmates
pre-selected by the CDCR under current regulations.
In-person, pre-arranged interviews with a specific
inmate are only allowed if the media representative is
an approved visitor, in which case they must come at
regular visitation hours and are prohibited from using
any electronic recording devices or cameras.
Consenting inmates with telephone privileges may
engage in recorded interviews with a media
representative but conversations are limited to 15
minutes.
Media is even more restricted access to the most
controversial correctional facilities such as the
secure housing units (SHU). Inmates detained in the
SHU are kept in total isolation without any visitation
and telephone privileges. These units have been
heavily critiqued for confining inmates in small
concrete cells for 23 hours of the day without any
contact for up to several months or even years,
conditions that have been shown to exacerbate mental
illness.
Although SHUs house only 5% of the inmate population,
the 2005 bi-partisan congressional Commission on
Safety and Abuse in American Prisons reported that 70%
of all California's inmate suicides occurred within
this population. Without a balanced depiction of the
situation, it is impossible for the public to fully
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understand and address potential issues within our
correctional facilities.
AB 1270 would expand media access while still allowing
CDCR discretion over media requests and also
respectfully includes a notification to crime victims.
It strikes a very sensible balance between fostering
greater transparency and acknowledging the need for
prison security needs.
2. Background and History
In 1971, the CDCR adopted a regulation prohibiting media access
to specifically named prisoners. This regulation was upheld by
the United States Supreme Court in Pell v. Procunier (1974) 417
U.S. 817. The Court found that a prison inmate retains those
first amendment rights that are not inconsistent with his or her
status as a prisoner and with the legitimate penological
objectives of the corrections system and the rights of the media
under the First and Fourteenth Amendments are not infringed
since the media can still visit prisons and talk to inmates at
random.
In 1975, the Legislature enacted Penal Code Section 2620
(Chapter 1175, Statutes of 1975) which provided that during any
periods of confinement, state prisoners may only be deprived of
rights "as is necessary in order to provide for the reasonable
security of the institutions . . . and for the reasonable
protection of the public." When this section was enacted, the
CDCR again allowed media access to specifically named prison
inmates.
In Turner v. Safly (1987) 482 U.S. 78, the test for limiting
inmates' rights was held to be whether the restriction "is
reasonably related to legitimate penological interests." In
1994, Penal Code Section 2620 was amended (Chapter 555, Statutes
of 1994) to generally adopt the Turner standard. As amended,
Penal Code Section 2620 stated: "A person sentenced to
imprisonment in the state prison may during a period of
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confinement be deprived of such rights and only such rights as
is related to legitimate penological interests."
The adoption of the Turner standard in statute, as noted above,
prompted the CDCR in 1996 to issue emergency regulations that
deleted news media from the confidential correspondence
authority and deleted authority for "specific person" media
interviews along with the procedures that had existed to
facilitate such interviews (and added language that "inmates may
not participate in specific-person face-to-face interviews").
3. Pre-Arranged Interviews with Inmates
Current regulations prohibit representatives of the news media
from prearranging an interview with a CDCR prisoner. With
respect to the implementation of these regulations, a CDCR
memorandum dated November 3, 2004, "Revisiting California
Department of Corrections Media Policy," sets forth CDCR's
policy regarding prearranged interviews:
Institutions are prohibited by CCR, Title 15, Section
3261.5 to arrange individual interviews between media and
inmates;
If a media member wants to contact an inmate, they can
do so by writing a letter and getting approval to be on the
inmate's visiting list;
As a visitor, media are allowed to bring writing
materials but are prohibited from bringing any electronic
recording devices and cameras; and
The media member can meet with a specific inmate during
normal visiting hours and is allowed to bring writing
material to take notes while interviewing an inmate.
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4. Cameras and Electronic Recording Equipment
Current regulations (a) restrict the use of video and audio
recording equipment while within a CDCR facility generally; (b)
require the prior approval of the institution head for random
interviews; and (c) may not be used for pre-arranged interviews
during visiting hours.
This bill requires CDCR to allow representatives of the news
media to use materials such as pens, paper and electronic
recording equipment during any interview with a prisoner,
subject to search and reasonable limitations on time and amount
of recording equipment entering the facility.
5. Governor's Veto Message
This bill is identical to SB 304 (Romero) of the 2007-2008
legislative session, which was vetoed by Governor
Schwarzenegger. His veto message stated:
For the past two years I have vetoed similar measures
because these bills would allow the media to glamorize
murderers and thereby once again traumatize crime
victims and their families.
This year I directed the California Department of
Corrections and Rehabilitation to address the media
access issues by adopting new regulations. Through
this process my administration met with stakeholders
from both crime victims groups and groups supporting
media access to address concerns on both sides. These
regulations are pending approval and public comment at
the Office of Administrative Law.
While the regulations do not go as far as the
provisions in this bill, I believe the regulations
provide more clear and appropriate access to our
prisons and preserve the balance with crime victims
and their families. I believe these regulations
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should be given a chance to work.
To the extent that stakeholders believe more media
access can be provided while respecting the concerns
of crime victims and their families, I encourage them
to participate in the public comment period of the
regulation process which will take place over the next
two months.
6. Argument in Support
The California Correctional Peace Officers Association states:
AB 1270 strikes an important balance between
relatively free media access to prisons and inmates,
the security needs of the prison system, and the
rights of victims. In 2007, CCPOA supported Senator
Romero's SB 304 to provide enhanced media access to
the prison system. We also supported and/or sponsored
similar legislation in 2005 and 2006. We believe that
all these measures struck the appropriate balance
mentioned above. Unfortunately, these prior measures
were vetoed by the Governor.
CCPOA believes that improved media access to the
prison system will result in a far greater public
understanding of the challenges faced by our members.
We look forward to working with the Legislature to
craft a media access bill that meets the needs of all
of the parties.
7. Argument in Opposition
Crime Victims Action Alliance states:
Opening up media access to allow for pre-arranged
face-to-face interviews with inmates elevates
criminals to a celebrity status - allowing them to be
interviewed and "tell their side of the story". It
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re-victimizes the victim and minimizes the inmate's
criminal behavior by allowing the inmate to glorify
the events of their criminal behavior. There is
simply no need for this enhanced access to the media
for prisoners.
Other versions of this legislation have been presented
to the Governor over the years. Governor Wilson
vetoed similar legislation stating, "The purpose of
imprisonment is punishment and deterrence of crime.
Those that are housed in state prison should not be
treated as celebrities. Just as the legislature has
enacted a ban upon activities which would allow �a]
criminal to profit materially from his crime, so
should prison officials prevent media exposure that
allows the criminal to enjoy the notoriety at the
expense of others." In 2006, Governor Schwarzenegger
also vetoed similar legislation stating, "I do not
believe violent criminals should be able to traumatize
their victims a second time by having unfettered
access to the media." Governor Schwarzenegger did
allow a more relaxed policy to be developed for media
access to inmates.
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