BILL ANALYSIS �
SB 139
Page 1
Date of Hearing: June 21, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 139 (Alquist) - As Amended: May 24, 2011
As Proposed to be Amended in Committee
SUMMARY : Requires the California 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 for contraband. Specifically, this bill :
1)Specifies that these searches shall include random searches of
property, personal or otherwise, brought into the prison by
those individuals.
2)Requires CDCR to provide notification to the Inspector General
(IG) no less than five days before the date of the random
searches CDCR plans to conduct.
3)Specifies that the searches shall be conducted at each
institution at least once per month.
4)Specifies that the Secretary of CDCR may cancel a search at an
institution in a given month provided that for each search not
conducted at an institution in a month, an additional search
must be conducted an another institution within the same
month, and no institution may go more than three months
without a search.
5)Requires CDCR to provide a written report to the Legislature
and the IG at least quarterly detailing 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, MP# players, DVD players, CD players, CDs, and
portable video game players; tobacco products found, and
illegal substances found, listed by type of substance.
SB 139
Page 2
6)States that the report shall include a general comments
section for use by the IG and CDCR 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.
7)Requires the IG to oversee at least one of CDCR's staff shift
searches per year at each adult institution to ensure the
integrity of the process and of the searches, and the accuracy
of the reports submitted. This requirement is not to be
interpreted to allow the Inspector General to direct the
department regarding when the random searches are to take
place, how they are carried out, or to require the Inspector
General's approval prior to conducting the random searches.
EXISTING LAW :
1)Mandates that the IG shall review CDCR 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 CDCR, as requested by either the CDCR
Secretary or a Member of the Legislature, pursuant to the
approval of the IG under policies to be developed by the IG.
The IG may, under policies developed by the IG, initiate an
investigation or an audit on his or her own accord. �Penal
Code Section 6126(a)(1).]
2)States that any person who knowingly brings into any state
prison or other institution under the jurisdiction of CDCR, or
into any prison camp, prison farm, or any other place where
prisoners or inmates of these institutions are located under
the custody of prison or institution officials, officers, or
employees, or into any county, city and county, or city jail,
road camp, farm or any other institution or place where
prisoners or inmates are being held under the custody of any
sheriff, chief of police, peace officer, probation officer, or
employees, or within the grounds belonging to any institution
or place, any alcoholic beverage, any drugs, other than
controlled substances, in any manner, shape, form, dispenser,
or container, or any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming any drug other than controlled substances, without
having authority so to do by the rules of CDCR, the rules of
the prison, institution, camp, farm, place, or jail, or by the
SB 139
Page 3
specific authorization of the warden, superintendent, jailer,
or other person in charge of the prison, jail, institution,
camp, farm, or place, is guilty of a felony. �Penal Code
Section 4573.5.]
3)States any person in a local correctional facility who
possesses a wireless communication device, including, but not
limited to, a cellular telephone, pager, or wireless Internet
device, who is not authorized to possess that item is guilty
of a misdemeanor, punishable by a fine of not more than
$1,000. �Penal Code Section 4575(a).]
4)Provides any person housed in a local correctional facility
that possesses any tobacco products in any form, including
snuff products, smoking paraphernalia, any device that is
intended to be used for ingesting or consuming tobacco, or any
container or dispenser used for any of those products, is
guilty of an infraction, punishable by a fine not exceeding
$250. Money collected pursuant to this section shall be
placed into the inmate welfare fund, as specified. �Penal
Code Section 4575(b) and (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The number of
cell phones confiscated in prison in 2006 was 261. Last year,
10,761 cell phones were confiscated. That constitutes an
increase of 4023% 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.'
"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
SB 139
Page 4
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 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 allows the OIG to oversee
the searches to ensure the integrity of the process. Finally,
SB 139 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)OIG Report : In May 2009, the OIG published a report, "Inmate
Cell Phone Use Endangers Prison Security and Public Safety".
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 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
SB 139
Page 5
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 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 OIG made several recommendations in its report to ameliorate
the harm caused by the proliferation of cell phones in prisons
and found "the dramatic rise in cell phones confiscated by
CDCR staff is a clear indicator that the current methods used
to interdict the introduction of cell phones are ineffective.
SB 139
Page 6
"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."
3)Previous Legislation :
a) SB 1066 (Oropeza), of the 2009-10 Legislation Session,
was substantially similar to this bill. SB 1066 was
vetoed. In his veto message, Governor Schwarzenegger
stated, "This measure is unnecessary as California law
already authorizes CDCR to search staff and vendors and
provides the necessary flexibility needed to conduct its
operations within existing budget constraints. SB 1066
removes this flexibility and instead codifies a cumbersome,
bureaucratic process that will impede the Department's
current and future efforts. Moreover, I cannot approve a
measure that will mandate such searches while the
Legislature fails to approve laws to give the proper tools
to law enforcement to prosecute individuals when contraband
such as wireless communications devices are found."
b) SB 268 (Harman), of the 2009-10 Legislation Session,
creates a misdemeanor for the possession of a cellular
telephone device or wireless communication device with the
SB 139
Page 7
intent to deliver that device to an inmate or ward in
CDCR's custody. SB 268 was not heard by this committee.
c) SB 434 (Benoit), of the 2009-10 Legislation Session,
states any inmate or ward who possesses any cellular
telephone or other wireless communication device, or any
component thereof, including, but not limited to,
subscriber identity module (SIM) cards and memory storage
devices, or any person who possesses with the intent to
deliver, or delivers, to an inmate or ward in the custody
of CDCR, any cellular telephone or other wireless
communication device or component, including, but not
limited to, SIM cards and memory storage devices, is guilty
of a misdemeanor, punishable by a fine not to exceed
$5,000. SB 434 was held on the Assembly Committee on
Appropriations' Suspense File.
d) SB 525 (Padilla), of the 2009-10 Legislation Session,
creates a misdemeanor for the possession of a cellular
telephone device or wireless communication device with the
intent to deliver that device to an inmate or ward in
CDCR's custody. SB 525 was vetoed. In his veto message,
Governor Schwarzenegger stated, "Over the last few years,
the proliferation of wireless communication devices in
California's prisons has become one of the most challenging
issues facing the Department of Corrections and
Rehabilitation. As technology has advanced and these
devices have become smaller and more powerful, the threat
these devices pose to employees in correctional facilities
and the public at large has grown. These devices allow
inmates to plan prison assaults and escapes, harass and
intimidate witnesses and victims, and facilitate other
criminal activities, including directing the activities of
criminal street gangs and authorizing murders.
"In response to this serious threat, my Administration
launched programs to conduct random searches at prisons,
established a committee to study cell phone jamming and
detection techniques, and even utilized trained dogs to aid
in uncovering contraband devices. In 2009, my
administration sponsored legislation to make possession of
an unauthorized wireless communication device in prison a
felony. Unfortunately, the Legislature failed to pass this
commonsense measure.
SB 139
Page 8
"Over a year later, the Legislature has passed this measure,
which does not make it a crime for an inmate to possess a
wireless communications device in a prison. Instead, this
measure would only make it a crime to bring a wireless
device into a prison with the intent to furnish it to an
inmate, a crime that would only be punishable by a $5,000
fine. Although our prisons continue to face drastic budget
cuts and overcrowding, it is inexcusable to treat the
threat of wireless communications devices in prisons so
lightly. Signing this measure would mean that smuggling a
can of beer into a prison carries with it a greater
punishment than delivering a cell phone to the leader of a
criminal street gang.
"I applaud the author for attempting to address this issue
and acknowledge that this may, in fact, be the strongest
measure that will emerge from the Legislature on this
issue. And while signing this measure might be better than
nothing, I cannot sign a measure that does so little. I
urge the Legislature to pass a measure that will deter the
conduct of persons smuggling wireless communication devices
into prisons with the threat of jail time as well as punish
the inmates who are caught possessing these devices."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
Friends Committee on Legislation
Life Support Alliance
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744