BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2357 (Galgiani) 7
As Amended May 25, 2012
Hearing date: June 12, 2012
Penal Code
SM:mc
TEMPORARY REMOVAL OF STATE PRISONERS
HISTORY
Source: Author
Prior Legislation: None
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD IT BE SPECIFIED THAT ONE OF THE REASONS FOR WHICH THE
SECRETARY OF THE DEPARTMENT OF CORRECTIONS AND REHABILITATION COULD
ORDER A STATE PRISONER TEMPORARILY REMOVED FROM A STATE PRISON IS TO
PARTICIPATE IN OR ASSIST WITH THE GATHERING OF EVIDENCE RELATING TO
CRIMES?
PURPOSE
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The purpose of this bill is to specify that one of the reasons
for which the Secretary of the Department of Corrections and
Rehabilitation (CDCR) could order a state prisoner temporarily
removed from a state prison is to participate in or assist with
the gathering of evidence relating to crimes.
Current law provides that the Director of Corrections may
authorize the temporary removal from prison or any other
institution for the detention of adults under the jurisdiction
of the Department of Corrections of any inmate, including
removal for the purpose of attending college classes. The
Director may require that the temporary removal be under
custody. Unless the inmate is removed for medical treatment,
the removal shall not be for a period of longer than three days.
The Director may require the inmate to reimburse the state, in
whole or in part, for expenses incurred by the state in
connection with such temporary removal other than for medical
treatment. (Penal Code � 2690.)
Current law states that no person imprisoned for a felony sex
offense, as specified, shall be removed or released from the
detention facility where he or she is confined for the purpose
of attending college classes in any city or county nor shall the
person be placed in a community correctional center. No person
under the jurisdiction of the adult court and confined under the
jurisdiction of the Department of the Youth Authority for
conviction of a felony sex offense, as specified, shall be
removed or released from the place of confinement for attendance
at any educational institution in any city or county. (Penal
Code � 2961.)
Current law states that the Director of Corrections may
prescribe and amend rules and regulations for the administration
of the prisons and for the administration of parole of persons
sentenced to a determinate sentence. (Penal Code � 5058.)
This bill would specify that one of the purposes for which the
Secretary of the Department of Corrections and Rehabilitation
could order a state prisoner temporarily removed from a state
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prison is to participate in or assist with the gathering of
evidence relating to crimes.
This bill would specify that the inmate would not be charged the
cost of a temporary removal from prison for this purpose.
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
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District of California established a Receivership to take
control of the delivery of medical services to all California
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:
In January of this year, Assemblymember Galgiani
notified the California Department of Corrections and
Rehabilitation (CDCR) Administration that death row
inmate Wesley Shermantine was revealing new
information which might lead to the recovery of murder
victims in San Joaquin and Calaveras Counties.
Assemblymember Galgiani informed CDCR Administration
that she had been notified that the FBI Evidence
Response Team was prepared to forensically attempt to
recover victims, and she asked CDCR Administration to
initiate contact between federal and local law
enforcement as necessary to begin the recovery effort.
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At the time, there was a lack of clarity as to whether
the CDCR had statutory authority to initiate the
recovery effort by permitting the temporary removal
from prison of the inmate to identify possible burial
sites which then would be searched and excavated by
the FBI Evidence Response Team.
Since that time, information provided has allowed for
the recovery of Chevy Wheeler who went missing in
1985; Cynthia Vanderheiden who went missing in 1998;
16 year old Joanne Hobson who went missing in 1984;
and 18 year old Kimberly Billy who went missing in
1984.
Local law enforcement officials are requesting that
the inmate be transported by CDCR officials upon
request, at future dates. In a highly sensitive and
complex case such as this, the Secretary of the
Department of Corrections and Rehabilitation should
have the authority to act.
Assembly Bill 2357 makes it explicitly clear that CDCR
has the statutory authority to temporarily remove an
inmate for purposes of assisting in a search and
recovery effort and participating in the gathering of
evidence relating to crimes.
The Shermantine situation has raised questions about
what law enforcement agency has the legal authority to
initiate or even participate in the removal of an
inmate from prison to aid in an investigation, in this
case the search for the remains of victims. This
clearly calls for a legislative action to clarify the
issue for all of the agencies involved.
My legislation, AB 2357, will explicitly give the
Department of Corrections and Rehabilitation broad
authority to initiate a recovery effort. I want to be
certain beyond a doubt that any future efforts will
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not be hindered in any unforeseen way, and that the
grief suffered by victim's families will not be
prolonged.
2. Effect of This Bill
Under existing law the Secretary of CDCR may authorize
temporarily removing any inmate from prison, including removal
for the purpose of attending college classes, except as
specified. The Secretary may require that the temporary removal
be under custody and, unless the inmate is removed for medical
treatment, the removal may not be for more than three days.
Except when the removal is for medical treatment, the Secretary
may require the inmate to reimburse the state, in whole or in
part, for expenses incurred by the state in connection with such
temporary removal. (Penal Code � 2690.) This bill would
specify that the Secretary could authorize the temporary removal
of a prisoner to participate in or assist with the gathering of
evidence relating to crimes and that the inmate would not be
charged for the costs of this removal.
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