BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
S
2011-2012 Regular Session
B
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SB 139 (Alquist)
As Introduced January 31, 2011
Hearing date: May 3, 2011
Penal Code
SM:dl
CELL PHONES IN PRISON:
RANDOM SEARCHES
HISTORY
Source: Author
Prior Legislation: SB 1066 (Oropeza) - 2010, Vetoed
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
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SB 139 (Alquist)
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Support: Life Support Alliance; Friends Committee on
Legislation of California
Opposition:None known
KEY ISSUES
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION
(CDCR) BE REQUIRED TO OVERSEE AND CONDUCT PERIODIC AND
RANDOM SEARCHES OF EMPLOYEES AND VENDORS ENTERING A STATE
PRISON FOR CONTRABAND, AS SPECIFIED?
(CONTINUED)
SHOULD CDCR BE REQUIRED TO PROVIDE A WRITTEN REPORT TO THE
LEGISLATURE AND THE INSPECTOR GENERAL AT LEAST MONTHLY REGARDING
THESE SEARCHES, AS SPECIFIED?
SHOULD THE INSPECTOR GENERAL BE REQUIRED TO OVERSEE, AT A MINIMUM,
CDCR'S SEARCH OF ONE STAFF SHIFT PER YEAR AT EACH ADULT INSTITUTION,
IN ORDER TO ENSURE THE INTEGRITY OF THE PROCESS AND OF THE SEARCHES,
AND THE ACCURACY OF THE REPORTS SUBMITTED BY CDCR, AS SPECIFIED?
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 employees and
vendors entering the secure perimeter of a state prison
under the jurisdiction of the department for contraband, as
specified; (2) require CDCR to provide a written report to
the Legislature and the Inspector General at least monthly
regarding these searches, as specified; and (3) require the
Inspector General to oversee, at a minimum, CDCR's search
of one staff shift per year at each adult institution, in
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order to ensure the integrity of the process and of the
searches, and the accuracy of the reports submitted by
CDCR, 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 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 CDCR to oversee and conduct
periodic and random searches of employees and vendors
entering the secure perimeter of a state prison under the
jurisdiction of the department for contraband. These
searches would include random searches of property,
personal or otherwise, brought into the prison by those
individuals. The department must provide the Inspector
General with no less than 24 hours' notice prior to the
dates of those random searches the department plans to
conduct.
This bill would require CDCR to provide a written report to
the Legislature and the Inspector General at least monthly
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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.
The number of vendors searched.
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.
Illegal substances found, listed by type of
substance.
The report shall include a general comment section for use
by the Inspector General and the department to discuss the
issues they find relevant to the searches and shall 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.
This bill would require the Inspector General to oversee,
at a minimum, the CDCR's search of one staff shift per year
at each adult institution, in order to ensure the integrity
of the process and of the searches, and the accuracy of the
reports submitted by CDCR regarding its random searches for
contraband, this bill would provide that nothing in its
provisions should be interpreted to allow the Inspector
General to direct CDCR regarding when the random searches
would take place, how the random searches would be carried
out, or as requiring the Inspector General's approval prior
to CDCR conducting the random searches.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in
California's prisons has been the focus of evolving and
expensive litigation. As these cases have progressed,
prison conditions have continued to be assailed, and the
scrutiny of the federal courts over California's prisons
has intensified.
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 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 Monday, June 14, 2010, the U.S. Supreme Court agreed to
hear the state's appeal of this order and, on Tuesday,
November 30, 2010, the Court heard oral arguments. A
decision is expected as early as this spring.
In response to the unresolved prison capacity crisis, in
early 2007 the Senate Committee on Public Safety began
holding legislative proposals which could further
exacerbate prison overcrowding through new or expanded
felony prosecutions.
This bill does not appear to aggravate the prison
overcrowding crisis described above.
COMMENTS
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1. Need for This Bill
According to the author:
The number of cell phones confiscated in prison
in 2006 was 261. Last year, 8,675 cell phones
were confiscated. That constitutes an increase
of 3224% percent. Recent stories in the news
report inmates paying $500 to $1500 per phone.
A 2010 KCRA 3 report quoted Avenal spokesman
saying inmates with cell phones "can order hits.
They can organize escapes." An AP story
discusses how Mexican drug traffickers call
prisons gangs in the United States via cell
phones when they "need someone killed or
kidnapped or drugs distributed in the United
States." Several news articles
The California Senate Rules Committee for the
last several years has focused on cell phones
entering prisons during the confirmation hearings
of California Department of Corrections and
Rehabilitation (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,
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including minors."
The report also found that, "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 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 139 codifies the activities of "Operation
Disconnect" into law and includes vendors as
those subject to the search. While cell phones
are targeted, SB 139 aims to halt all contraband
entering prisons. SB 139 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. Office of the Inspector General (OIG) Report : In May
2009, the OIG published a report, "Inmate Cell Phone Use
Endangers Prison Security and Public Safety."
(http://www.oig.ca.gov/media/reports/BOI/Special%20Report%20
of%20Inmate%20Cell%20Phone%20Use.pdf) 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
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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
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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 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 report examined CDCR's efforts at interdiction of cell
phones entering prisons:
In July 2008, the Department's Office of Internal
Affairs (OIA), in coordination with prison
investigative staff, executed a two-day surprise
operation dubbed "Project Disconnect." OIA agents and
institutional staff conducted systematic searches of
prison housing facilities of inmates suspected to
possess cell phones. Prior to the two-day operation,
OIA agents obtained confidential information of
employees believed to be involved in smuggling cell
phones to inmates. In addition, employees who acted
suspiciously during the operation were stopped,
questioned, and searched. One employee's vehicle was
searched and fifty cell phones, labeled with inmates'
names, were seized.
In order for this methodology to be an effective tool,
the Department would have to employ enhanced security
detection devices and manual searches, similar to
those used at airports. Facility staff, contracted
employees, and visitors would be required to remove
their shoes, slide all their personal items through an
x-ray machine, walk through a metal detector, and if
necessary, submit to pat-down searches. Department
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management and investigative staff said this detection
system is needed at points of entry to all facilities.
According to the Department, this procedure would
require additional staff. The Department has
determined this security screening measure will cost
approximately $28,000 at each entry point plus the
cost of additional correctional staff to monitor the
equipment and perform the searches.
Currently in California, while all visitors at any CDCR
facility are screened through metal detectors, employees,
correctional officers, non-sworn staff and contractors, are
not. This stands in contrast to the practice of the
Federal Bureau of Prisons. The OIG report states:
The federal Bureau of Prisons is also experiencing a
rise in employees and visitors smuggling cell phones.
To combat this activity they have implemented
airport-style metal detection screening systems at all
of their facilities. They now require all staff and
visitors to remove their shoes, belts, and any
metallic objects from their persons. Belongings are
scanned and viewed through an x-ray machine and
everyone must walk through a metal detector. This
screening process requires three correctional officers
and a supervisor during each shift change.
After some initial resistance from the correctional
worker's union, the federal Bureau of Prisons overcame
the opposition through negotiations pertaining to
institutional polices and procedural changes. Once
staff grew accustomed to the new entry screening
process, the added time it took them to report to
their workstations was minimized. Even though the
federal Bureau of Prisons does not keep statistics on
the number of cell phones seized in their prisons,
they believe the screening process has been a good
deterrent.
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The OIG report concludes:
The dramatic rise in cell phones confiscated by
Department staff is a clear indicator that the current
methods used by the Department 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.
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ARE THE RANDOM SEARCHES OF CDCR EMPLOYEES AND VENDORS
CONSISTENT WITH THE RECOMMENDATIONS OF THE OIG?
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 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:
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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.
HOW ARE CELL PHONES GETTING INTO PRISONS?
WILL RANDOM SEARCHES OF CDCR STAFF AND VENDORS HELP KEEP
CELL PHONES OUT OF PRISONS?
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4. Author's Amendment
To be consistent with SB 490 (Hancock), which is scheduled to be
heard on the same day as this bill, the author has proposed to
delete Section 2 of the bill, the requirement that the OIG
oversee the CDCR searches, and replace that section with the
following language:
The Inspector General, or its successor may oversee,
at a minimum, the department's search of one staff
shift per year at each adult institution, in order to
ensure the integrity of the process and of the
searches, and the accuracy of the reports submitted
pursuant to Section 5040. Nothing in this paragraph
shall be interpreted to allow the Inspector General to
direct the department regarding when the random
searches shall take place, to allow the Inspector
General to direct the department regarding how the
random searches shall be carried out, or as requiring
the Inspector General's approval prior to the
department conducting the random searches.
SHOULD THIS AMENDMENT BE TAKEN?
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