BILL ANALYSIS �
SB 796
Page 1
Date of Hearing: June 21, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 796 (Blakeslee) - As Amended: June 15, 2011
SUMMARY : Creates a misdemeanor for any person to possess with
the intent to deliver to a patient in a state hospital specified
prohibited items. Specifically, this bill :
1)States that, unless authorized to do so, a person who
possesses with the intent to deliver, or delivers, to a
patient in a state hospital any of the following items, when
the patient has been prohibited from possessing the items by
either statute or regulation, is guilty of a misdemeanor
punishable by a fine not exceed $1,000 for each item. The
prohibited items include:
a) A cellular phone or other wireless communication device
or any component thereof, including but not limited to, a
subscriber identity card (SIM card) or memory storage
device.
b) Tobacco products, if the state hospital has a ban on
tobacco products.
c) Money, in excess of the limitations and restrictions
adopted by the state hospital.
2)States that if a person visiting a patient in a state
hospital, upon being searched of subjected to a metal
detector; is found to be in possession of a prohibited item,
the item shall be subject to confiscation but shall be
returned on the same day the person visits the patient, unless
the item is held as evidence in a case where it was believed
that the visitor was in possession with intent to deliver the
item to a patient.
3)Notice of the prohibition on items shall be posted in all
areas where visitors are searched, and outside of the facility
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in a location easily visible to visitors.
EXISTING LAW :
1)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.
�Welfare and Institutions Code (WIC) Sections 4011 and 4100.]
2)Provides that DMH has general control and direction of the
property and concerns of each state hospital specified in WIC
Section 4100. DMH shall (WIC Section 4109):
a) 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.
b) 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.
3)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. (WIC
Section 5000 et seq.)
4)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. (WIC Section 7227 and Penal Code Section
2960 et seq.)
5)Allows prisoners found to be sexually violent predators (SVPs)
to be civilly confined based on a judicial commitment. A
"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. A
SVP must have a diagnosable mental disorder that makes the
person a danger to the health and safety of others in that it
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is likely that he or she will engage in sexually violent
criminal behavior. (WIC Sections 6600 to 6608.)
6)Provides that, upon receiving a request from the director of a
state hospital listed in WIC Section 4100, the Director of DMH
may prohibit the possession or use of tobacco products on the
grounds of the requesting facility, as specified. (WIC
Section 4138.)
7)Prohibits wireless communication devices, as specified, within
a state hospital. (9 Cal. Code of Regulations Section 4350.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The State
mental hospital population is now 92% forensic. This means
that at least 92% 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.
"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."
SB 796
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2)Prohibited Items in State Hospitals : 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 California Department of
Corrections and Rehabilitation to perform "spot searches" of
prison staff for unauthorized wireless devices. SB 139 will
be heard by this Committee today.
Last year, DMH promulgated regulations specifically prohibiting
the possession of wireless communication devices in a state
hospital. (9 Cal. Code of Regulations Section 4350.) In
2008, AB 3010 (Blakeslee), Chapter 505, Statutes 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
creates 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 is a fine of up to $1,000 per item.
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., WIC Section 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
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the facility. The Federal Court of Appeal has stated:
"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, this bill
does not impose those restrictions, inasmuch as they already
exist. Rather, SB 796 prohibits providing or attempting to
provide those items to state hospital patients in an
unauthorized manner.
3)Argument in Support : According to the American Federation of
State, County and Municipal Employees , "�s]afety, 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."
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Opposition
SB 796
Page 6
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744