BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 796 (Blakeslee)
As Amended April 25, 2011
Hearing date: May 3, 2011
Welfare and Institutions Code
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STATE HOSPITALS: SMUGGLING CONTRABAND
HISTORY
Source: California Statewide Law Enforcement Association
Prior Legislation: SB 26 (Padilla) - pending in Senate
Appropriations
SB 525 (Padilla) - 2010, vetoed
SB 434 (Benoit) - 2009, died on suspense in
Assembly Appropriations
SB 1730 (Padilla) - 2008, died on suspense in
Senate Appropriations
AB 3010 (Blakeslee) - Ch. 505, Stats. 2008
SB 1267 (Leslie) - 2006, died on suspense in Senate
Appropriations
SB 1831 (Margett) - 2006, died in Senate Public
Safety
Support: American Federation of State, County, and Municipal
Employees (AFSCME), AFL-CIO
Opposition:California Public Defenders Association; Disability
Rights California; Legal Services for Prisoners with
Children; California Coalition for Women Prisoners
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KEY ISSUES
SHOULD POSSESSION WITH THE INTENT TO DELIVER, OR DELIVERY, TO A
PATIENT IN A STATE HOSPITAL OF A WIRELESS COMMUNICATION DEVICE,
TOBACCO PRODUCTS OR CURRENCY, EXCEPT AS AUTHORIZED, BE A
MISDEMEANOR, PUNISHABLE BY A FINE NOT TO EXCEED $1,000 FOR EACH
ITEM?
(CONTINUED)
SHOULD A PERSON VISITING A PATIENT IN A STATE HOSPITAL WHO, UPON
BEING SEARCHED OR SUBJECTED TO A METAL DETECTOR, IS FOUND TO BE IN
POSSESSION OF A WIRELESS COMMUNICATION DEVICE, TOBACCO PRODUCTS OR
CURRENCY, EXCEPT AS AUTHORIZED, BE SUBJECT TO HAVING THE ITEM
CONFISCATED, AS SPECIFIED?
SHOULD NOTICE OF THESE PROVISIONS BE POSTED IN ALL AREAS WHERE
VISITORS ARE SEARCHED PRIOR TO VISITATION WITH A PATIENT?
PURPOSE
The purpose of this bill is to provide that (1) except as
specified, a person who possesses with the intent to deliver, or
delivers, to a patient in a state hospital a wireless
communication device, tobacco products or currency, except as
authorized, is guilty of a misdemeanor, punishable by a fine not
to exceed $1,000 for each item; (2) notwithstanding the above
provisions, if a person visiting a patient in a state hospital,
upon being searched or subjected to a metal detector, is found
to be in possession of any of these items, the item shall be
subject to confiscation but shall be returned on the same day
the person visits the inmate or ward, unless the item is held as
evidence in a case where the person is cited for smuggling
contraband, as specified; and (3) notice of this provision shall
be posted in all areas where visitors are searched prior to
visitation with a patient.
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Existing law requires the state Department of Mental Health
(DMH) to administer several public mental health programs and
manage the care and treatment of severely mentally ill patients
at California's five state mental hospitals: Atascadero,
Metropolitan, Napa, Coalinga, and Patton State Hospitals.
(Welf. & Inst. Code �� 4011, 4100.)
Existing law provides that DMH has general control and direction
of the property and concerns of each state hospital specified in
Section 4100. DMH shall:
Establish such bylaws, rules, and regulations as it
deems necessary and expedient for regulating the duties of
officers and employees of the hospital, and for its
internal government, discipline, and management.
Take care of the interests of the hospital, and see that
its purpose and its bylaws, rules, and regulations are
carried into effect, according to law. (Welf. & Inst. Code
� 4109.)
Existing law provides that, under the Lanterman-Petris-Short
(LPS) Act, persons who, by reason of mental disorders, are
"dangerous to others or to themselves or who are gravely
disabled" may be involuntarily held for 72 hours, treated for
14 additional days, and 180 days following a judicial hearing.
(Welf. & Inst. Code �� 5000 et seq.)
Existing law provides that a prisoner found to be a mentally
disordered offender (MDO) can be required to receive mental
treatment as a condition of parole and may be civilly confined
after his or her parole expires. (Welf. & Inst. Code � 7227 and
Penal Code �� 2960 et seq.)
Existing law allows prisoners found to be sexually violent
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predators (SVPs) to be civilly confined based on a judicial
commitment. An "SVP" is defined as a person who has been
convicted of a sexually violent offense, as specified, against
two or more victims for whom he or she received a determinate
sentence. An SVP must have a diagnosable mental disorder that
makes the person a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior. (Welf. & Inst. Code �� 6600 to 6608.)
Existing law provides that, upon receiving a request from the
director of a state hospital listed in Section 4100, the
Director of Mental Health may prohibit the possession or use of
tobacco products on the grounds of the requesting facility, as
specified. (Welf. & Inst. Code � 4138.)
Existing law prohibits wireless communication devices, as
specified, within a State Hospital. (9 Cal. Code of Regulations
� 4350.)
This bill would provide that, except as specified, a person who
possesses with the intent to deliver, or delivers, to a patient
in a state hospital a wireless communication device, tobacco
products or currency, except as authorized, is guilty of a
misdemeanor, punishable by a fine not to exceed $1,000 for each
item.
This bill would provide that, if a person visiting a patient in
a state hospital, upon being searched or subjected to a metal
detector, is found to be in possession of a wireless
communication device, tobacco products or currency, except as
authorized, the item shall be subject to confiscation but shall
be returned on the same day the person visits the inmate or
ward, unless the item is held as evidence in a case where the
person is cited for smuggling contraband, as specified. If,
upon investigation, it is determined that no prosecution will
take place, the item shall be returned to the owner at the
owner's expense. Notice of this provision shall be posted in
all areas where visitors are searched prior to visitation with a
patient.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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 State mental hospital population is now 92 percent
forensic. This means that at least 92 percent of
these patients have spent time in prison or county
jail, thus many of the learned behaviors are making
their way into the hospital system. DMH hospitals are
ill equipped to handle this change in clientele and
have made little progress in creating an environment
where staff can work safely and less functioning
patients can receive the treatment they need.
Currently, many items on the contraband list are being
smuggled into the mental health hospitals that are
being used as currency by patients and can create a
dangerous situation for staff and patients alike. For
example, a can of rolling tobacco that costs
approximately $12, can go for as much as $300 if
smuggled inside one of the facilities. Many of the
malingering patients have set up operations where they
are often preying on the less functioning individuals
by loaning cigarettes on the promise to pay at a later
date. When those less functioning patients cannot
come up with the currency, they are often threatened
and assaulted, sometimes violently.
Furthermore, cell phones have become a problem inside
the facilities. As more and more hospitals receive
patients from prisons, the amount of smuggled cell
phones has increased. SB 26 (Padilla) would create a
misdemeanor when a nonemployee intends to deliver to
an inmate a cell phone. If it is harder for inmates
to receive cell phones in prison, many of them have
learned that it is relatively easy to game the system
by faking a mental condition that would result in a
transfer to a mental hospital where it is easier to
access contraband items due to less stringent
regulations and greater staffing shortages. SB 796
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differs from SB 26 by holding accountable staff, as
well as visitors, for violations of smuggling
contraband into hospitals.
SB 796 represents a common-sense solution to help curb
the stream of contraband into the already dangerous
working environment at the mental hospitals while
providing less functioning patients that desperately
need treatment and staff with a more secure setting to
work and treat these individuals.
2. Due Process Issues and What This Bill Would Do
The proliferation of cellular phones and other wireless
communication devices has been widely recognized as a growing
security problem in prisons nationwide. This Committee has
approved several bills in recent years to address this problem.
Earlier this year, this Committee approved SB 26 (Padilla),
which would impose misdemeanor penalties for possession with
intent to smuggle a wireless communication device to a state
prisoner. SB 26 is currently pending in the Senate
Appropriations Committee. SB 139 (Alquist) would require the
Department of Corrections and Rehabilitation to perform
spot-searches of prison staff for unauthorized wireless devices.
SB 139 is scheduled to be heard in this Committee on the same
day as this bill.
Last year the Department of Mental Health promulgated
regulations specifically prohibiting the possession of wireless
communication devices in a state hospital. (9 Cal. Code of
Regulations � 4350.) In 2008, AB 3010 (Blakeslee) (Ch. 505,
Stats. of 2008) authorized the DMH, at the request of a director
of a state mental hospital, to prohibit the possession or use of
tobacco products on the grounds of the requesting facility.
This bill would create criminal penalties for possession with
intent to deliver to a state hospital patient, a wireless
communication device, tobacco products or currency, except as
authorized. The penalty would be a fine of up to $1,000 per
item.
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Inmates in state prisons and patients in state hospitals may not
be subject to the same treatment or conditions of confinement.
Because state hospital patients may be confined as a result of a
civil commitment rather than a criminal conviction, the purpose
of their commitment is treatment rather than punishment. (See,
e.g., Welf. & Inst. Code � 6250, regarding persons committed as
sexually violent predators, ". . . as far as possible and
consistent with the rights of persons subject to commitment,
those persons shall be treated, not as criminals, but as sick
persons.") The courts have recognized that, where the
commitment is not for a punitive purpose, patients may not be
treated the same way as criminals. "Persons who have been
involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish." (Youngberg
v. Romeo, 457 U.S. 307, 321-322 (1982).) However, this must be
balanced against the state's interest in the security of the
facility. The Federal Court of Appeal has stated:
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At a bare minimum, then, an individual detained under
civil process -- like an individual accused but not
convicted of a crime -- cannot be subjected to
conditions that "amount to punishment." Bell, 441 U.S.
at 536. Following Bell, we have recognized that
punitive conditions may be shown (1) where the
challenged restrictions are expressly intended to
punish, or (2) where the challenged restrictions serve
an alternative, non-punitive purpose but are
nonetheless "excessive in relation to the alternative
purpose," or "are employed to achieve objectives that
could be accomplished in so many alternative and less
harsh methods." Legitimate, non-punitive government
interests include ensuring a detainee's presence at
trial, maintaining jail security, and effective
management of a detention facility. ( Jones v. Blanas ,
393 F.3d 918, 931-932 (9th Cir. Cal. 2004).)
While it is not clear whether current restrictions on wireless
communications devices, tobacco products or money as applied to
state hospital patients amount to punishment,<1> this bill does
not impose those restrictions, inasmuch as they already exist.
Rather, SB 796 would prohibit providing or attempting to provide
those items to state hospital patients in an unauthorized
manner.
SHOULD THESE PENALTIES BE IMPOSED?
3. Technical Amendment
On page 2, lines 22-23, where this bill refers to "inmate or
ward" it should have used the term "patient." The author may
wish to consider amending the bill to correct this oversight.
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<1> A lawsuit by a state hospital patient challenging the
regulation prohibiting wireless communication devices was
dismissed last year by a federal court magistrate-judge for,
inter alia, lack of ripeness because DMH had not yet confiscated
the patient's laptop computer. (Rotroff v. Ahlin, 2010 U.S.
Dist. LEXIS 74027 (E.D. Cal. July 21, 2010).
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SHOULD THIS AMENDMENT BE TAKEN?
4. Argument in Support
AFSCME states:
Safety, for both patients and employees, is becoming
an increasingly urgent issue for California's
psychiatric hospitals. Violent incidents have been on
the rise for years, culminating in the death of Donna
Gross, a psychiatric technician at Napa State
Hospital, in October 2010. By strengthening the rules
that prevent patients from gaining access to
prohibited items, Senate Bill 796 would contribute to
the large-scale safety reform of those facilities.
5. Argument in Opposition
Disability Rights California states:
If �a] goal of this subsection is to prevent staff
from bringing prohibited items for residents, this
bill does not address that goal. Further, in our
experience, at times, staff bring prohibited items,
not to give to residents, but to taunt or harass them.
For example, in the past we received complaints from
state hospital residents regarding staff that bring
nude photographs and show them to residents of the
opposite sex, or staff bring pornographic images and
show them to individuals under a sexually violent
predator commitment knowing that these items are
prohibited. These actions are harmful to a resident's
treatment.
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