BILL ANALYSIS �
AB 2002
Page 1
Date of Hearing: April 1, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2002 (Frazier) - As Introduced: February 20, 2014
SUMMARY : Makes it a misdemeanor, punishable by imprisonment in
the county jail for up to six months, a fine of up to $5000 or
both imprisonment and a fine, for any person who possesses with
the intent to deliver, or delivers, to an inmate or a ward of a
local correctional facility a cellular phone or wireless
communication device. Specifically, this bill :
1)States if a person visiting an inmate or ward in local
correctional facility, upon being searched or subjected to a
metal detector, is found to be in possession of a cellular
phone or other wireless communication device or any component
thereof, that device or component shall be subject to
confiscation but shall be returned on the same day the person
visits the inmate or ward, unless the cellular telephone or
other wireless communication device or any component thereof
is held as evidence in a case where the person is charged with
the misdemeanor created by this bill.
2)Provides, if, upon investigation, it is determined that no
prosecution will take place, the cellular telephone or other
wireless communication device or any component thereof shall
be returned to the owner at the owner's expense.
3)Requires notice of this prohibition to be posted in all areas
where visitors are searched prior to visitation with an inmate
or ward in a local correctional facility.
4)States an inmate who is found to be in possession of a
wireless communication device shall be subject to time credit
denial or loss of up to 90 days.
5)Provides that a person who brings, without authorization, a
wireless communication device within the secure perimeter of a
local correctional facility is deemed to have given his or her
consent to the city or county using available technology to
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prevent that wireless device from sending or receiving
telephone calls or other forms of electronic communication;
and requires notice of this provision to be posted at all
public entry gates of the local correctional facility.
6)Requires a city or county to obtain a valid search warrant
prior to accessing data or communications that have been
captured using available technology from unauthorized use of a
wireless communication device.
7)States that a city or county shall not capture data or
communications from an authorized wireless communication
device, except as already authorized under existing law.
8)States that a city or county shall not access data or
communications that have been captured using available
technology from an authorized wireless communication device,
except as already authorized under existing law.
9)Requires a city or county, if the available technology to
prevent wireless communications from sending and receiving
telephone calls or other forms of electronic communication
extends beyond the secure perimeter of the local correctional
facility, to take all reasonable actions to correct the
problem.
10)Provides that a contractor or employee of a contractor or the
city or county who knowingly and willfully, without
authorization, obtains, discloses, or uses confidential
information in violation of the above sections related to
capturing and accessing data, is subject to an administrative
fine or civil penalty not to exceed $5,000 for a first
violation, $10,000 for a second violation, or $25,000 for a
third or subsequent violation.
11)Specifies that these provisions do not prohibit a city or
county from obtaining electronic communications that the city
or county could have lawfully obtained prior to January 1,
2015.
12)States, except as authorized, a person who possesses with the
intent to deliver, or delivers, to a ward confined in any of
the specified institutions any cellular telephone or other
wireless communication device or any component thereof, is
guilty of a misdemeanor, punishable by imprisonment in a
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county jail not exceeding six months, a fine not to $5,000 for
each device, or both that fine and imprisonment.
13)Provides, if a person visiting a ward confined in one of the
specified institutions, upon being searched or subjected to a
metal detector, is found to be in possession of a cellular
telephone or other wireless communication device or any
component thereof, that device or component is subject to
confiscation but shall be returned on the same day the person
visits the ward, unless the cellular telephone or other
wireless communication device or any component thereof is held
as evidence in a case where the person is cited for a
violation of the above provision.
14)States, if, upon investigation, it is determined that no
prosecution will take place, the cellular telephone or other
wireless communication device or any component thereof shall
be returned to the owner at the owner's expense.
15)Requires notice of this provision shall be posted in all
areas where visitors are searched prior to visitation with a
ward confined in a juvenile hall, ranch, camp, or forestry
camp.
16)States, a person who brings, without authorization, a
wireless communication device within the secure perimeter of
any juvenile hall, ranch, camp, or forestry camp is deemed to
have given his or her consent to the county using available
technology to prevent that wireless device from sending or
receiving telephone calls or other forms of electronic
communication; and requires notice of this provision to be
posted at all public entry gates of the prison or institution.
17)Requires a county to obtain a valid search warrant prior to
accessing data or communications that have been captured using
available technology from unauthorized use of a wireless
communication device.
18)Prohibits a county from capturing data or communications from
an authorized wireless communication device, except as already
authorized under existing law.
19)States that a county shall not access data or communications
that have been captured using available technology from an
authorized wireless communication device, except as authorized
under existing law.
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20)Provides, if the available technology to prevent wireless
communications from sending and receiving telephone calls or
other forms of electronic communication extends beyond the
secure perimeter of the juvenile hall, ranch, camp, or
forestry camp, a county shall take all reasonable actions to
correct the problem.
21)States that a contractor or employee of a contractor or a
county who knowingly and willfully, without authorization,
obtains, discloses, or uses confidential information in
violation of the above provisions related to capturing and
accessing data, shall be subject to an administrative fine or
civil penalty not to $5,000 for a first violation, or $10,000
for a second violation, or $25,000 for a third or subsequent
violation.
22)Specifies that these provisions do not prohibit a county from
obtaining electronic communications that the county could have
lawfully obtained prior to January 1, 2015.
EXISTING LAW :
1)Provides that 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. (Pen. Code, � 4575, subd. (a).)
2)States that it is a misdemeanor, punishable by imprisonment in
the county jail not exceeding six months, a fine not to exceed
$5,000 for each device, or both that fine and imprisonment,
for a person who possesses with the intent to deliver, or
delivers, to an inmate or ward in the custody of the
California Department of Corrections and Rehabilitation (CDCR)
any cellular telephone or other wireless communication device
or any component thereof, except as specified. (Pen. Code, �
4576, subd. (a).)
3)States if a person visiting an inmate or ward in the custody
of CDCR, upon being searched or subjected to a metal detector,
is found to be in possession of a cellular telephone or other
wireless communication device or any component thereof, that
device or component shall be subject to confiscation but shall
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be returned on the same day the person visits the inmate or
ward, unless the cellular telephone or other wireless
communication device or any component thereof is held as
evidence in a case where the person is cited for a violation
of the above provision. (Pen. Code, � 4576, subd. (b)(1).)
4)Provides, if, upon investigation, it is determined that no
prosecution will take place, the cellular telephone or other
wireless communication device or any component thereof shall
be returned to the owner at the owner's expense. (Pen. Code,
� 4576, subd. (b)(2).)
5)Requires notice of this provision shall be posted in all areas
where visitors are searched prior to visitation with an inmate
or ward in the custody of CDCR. (Pen. Code, � 4576, subd.
(b)(3).)
6)States any inmate who is found to be in possession of a
wireless communication device shall be subject to time credit
denial or loss of up to 90 days. (Pen. Code, � 4576, subd.
(c).)
7)Provides that a person who brings, without authorization, a
wireless communication device within the secure perimeter of
any prison or institution housing offenders under the
jurisdiction of CDCR is deemed to have given his or her
consent to CDCR using available technology to prevent that
wireless device from sending or receiving telephone calls or
other forms of electronic communication. Notice of this
provision shall be posted at all public entry gates of the
prison or institution. (Pen. Code, � 4576, subd. (d).)
8)Requires CDCR to obtain a valid search warrant prior to
accessing data or communications that have been captured using
available technology from unauthorized use of a wireless
communication device. (Pen. Code, � 4576, subd. (e).)
9)States that CDCR shall not capture data or communications from
an authorized wireless communication device, except as already
authorized under existing law. (Pen. Code, � 4576, subd.
(f).)
10)States that CDCR shall not access data or communications that
have been captured using available technology from an
authorized wireless communication device, except as already
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authorized under existing law. (Pen. Code, � 4576, subd.
(g).)
11)Provides if the available technology to prevent wireless
communications from sending and receiving telephone calls or
other forms of electronic communication extends beyond the
secure perimeter of the prison or institution, CDCR shall take
all reasonable actions to correct the problem. (Pen. Code, �
4576, subd. (h).)
12)States that any contractor or employee of a contractor or
CDCR who knowingly and willfully, without authorization,
obtains, discloses, or uses confidential information in
violation the provisions of law prohibiting capture and access
of data shall be subject to an administrative fine or civil
penalty not to exceed $5,000 for a first violation, or $10,000
for a second violation, or $25,000 for a third or subsequent
violation. (Pen. Code, � 4576, subd. (i).)
13)Specifies that nothing in these provisions of law prohibits
CDCR from obtaining electronic communications that the
department could have lawfully obtained prior to the effective
date of those provisions. (Pen. Code, � 4576, subd. (j).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2011, over
15,000 cell phones were confiscated in the California prison
system. Cell phone access by inmates has been connected with
murders, organizing escapes, drug deals, controlling gangs,
and harassing victims from inside the prison walls.
"Cell phones pose a major public safety threat while in the
hands of inmates serving time in state prisons, local
correctional facilities or juvenile facilities. However, the
fines and penalties are inconsistent depending on which
correctional facility a person is smuggling a cell phone in
to.
"AB 2002 establishes that a person who smuggles a cell phone or
a wireless device into a local correctional facility or a
juvenile hall, ranch, camp is guilty of a misdemeanor
punishable by up to six months in county jail and up to a
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$5,000 dollar fine.
"This bill also establishes that an inmate in a local
correctional facility who is in possession of a wireless
device can be subject to time credit denial or a loss of up to
ninety days.
"Additionally, AB 2002 would prohibit a contractor or an
employee from using any data captured by available technology
from wireless devices and establishes a $5,000 fine for the
first violation, $10,000 for the second violation, and $25,000
for any subsequent violations."
2)Prevalence of Contraband Cell Phones in Custodial Settings : In
May 2009, the Office of the Inspector General (OIG) published
a report, "Inmate Cell Phone Use Endangers Prison Security and
Public Safety." The report found that there was a
proliferation of contraband cell phones in California prisons.
In 2008, CDCR officials had confiscated 2,811 cell phones
from prison inmates. After several attempts at addressing the
issue legislatively, SB 26 (Padilla), Chapter 500, Statutes of
2011, was signed by the Governor. SB 26 provided that, except
as otherwise authorized by law, or when authorized by either
the person in charge of the prison or other institution under
the jurisdiction of CDCR or an officer of the institution
empowered to give that authorization, a 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 any component thereof, is
guilty of a misdemeanor, punishable by imprisonment in the
county jail not exceeding six months, a fine not to $5,000 for
each device, or both that fine and imprisonment.
This bill applies the same provisions in SB 26 to cellular
phones in county jails and juvenile facilities. Current law
prohibits a person from possessing a wireless communication
device, including cellular phones, pagers or wireless internet
devices in a local correctional facility. This offense is
punishable as a misdemeanor by a fine of up to $1,000. Money
collected under this section is required to be placed in the
inmate welfare fund. (Pen. Code, � 4575, subds. (a) & (c).)
Additionally, each local facility has its own rules on inmate
misconduct, which provides for penalties such as loss of
privileges or credits, or other sanctions.
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The problem of cell phones in local correctional facilities is
less prolific than in state prisons. As discussed above, the
OIG found that there were 2,811 cell phones confiscated from
inmates in 2008. This Committee has been informed by the
Department of Justice that far less people in county jail have
been found in possession of contraband cell phones or wireless
communication devices.
In 2011, there were a total of 41 arrests which resulted in 12
convictions for a violation of Penal Code Section 4575,
subdivision (a). In 2012, there were 57 arrests resulting in
17 convictions for a violation of this section. In 2013,
there were 46 arrests that resulted in 18 convictions for a
violation of this section. Comparing the numbers in 2011 with
subsequent years, it is also apparent that there was not a
substantial increase in possession of cell phones by jail
inmates after implementation of the 2011 Public Safety
Realignment Act which affected the population of county jails
by including some felons. (AB 109 (Committee on Budget),
Chapter 15, Statutes of 2011.)
Considering that the problem of cell phones in county jails is
not as prolific as in prisons, is an increased penalty and
fine warranted? According to a recent report by the Public
Policy Institute of California titled Capacity Challenges in
California's Jails, California's county jails are facing
increasing adult daily populations (ADP). Many counties are
facing capacity constraints on their population. Prior to
realignment, 17 counties were operating under court orders
limiting the number of inmates in their jails. In all, 13
counties including some of the biggest (Los Angeles, Orange,
San Diego, and Sacramento) had average daily populations that
were larger than the number of beds their jails were rated
for. Bills that add jail time and take away credits will only
exacerbate capacity problems.
3)Technology to Suppress Unauthorized Cell Phone Use : SB 26
also addressed CDCR's plan to use of Managed Access Systems
(MAS) technology to deal with unauthorized cell phone calls in
its prisons. Using the new technology, CDCR would be able to
intercept cell phone calls in order to prevent inmates from
accessing carrier networks. The cell signal is not blocked by
a jamming signal, but rather captured (or re-routed) and
prevented from reaching other network base stations, thereby
preventing the completion of the call. Reports on the new
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technology found that it would be costly, at about $1 million
per prison, and has the potential to accidentally intercept
and block cellphone calls made outside prison walls.
(National Telecommunications and Information Administration,
"Contraband Cellphones in Prison - Possible Wireless
Technology Solutions (Dec. 2012).) Opponents of SB 26 raised
constitutional free speech and privacy concerns for
non-inmates who may have their phone calls and text messages
intercepted and stored in a database for an unspecified period
of time, with the possibility that this information could
later be accessed for a criminal investigation. Therefore,
warrant provisions as well as limits on accessing or capturing
data were added to SB 26 to address some of those concerns.
This bill contains the same warrant provisions, as well as
limits to capturing and accessing data intercepted through a
managed access system. Unlike state prisons, county jails are
often located in highly populated areas. MAS technology has
the potential to intercept and block cell phone calls made
outside of the jails, and would be problematic for areas that
are highly populated or are located near other buildings.
Additionally, the cost of such a system would not be
worthwhile considering the low numbers of cell phone
possession in county jails.
A recent report to the Legislature found that the MAS technology
was not mature enough for immediate large-scale deployments
such as that proposed by CDCR at California's 33 state
prisons. The report also found that "[t]here are significant
technological challenges to effective implementation of MAS
and other approaches based on the evolving capabilities of
mobile devices. This includes capabilities seen in mobile
devices in the marketplace today and the anticipated future
capabilities of commercial mobile devices including satellite
phones. This complexity argues for an investment in securing
the contraband devices themselves rather than reliance on
technology to block the communication." An example of MAS
technology limitation was that text messages could still be
sent or received due to the 60-second window to block calls
and messages. (See California Council on Science and
Technology, The Efficacy of Managed Access Systems to
Intercept Calls from Contraband Cell Phones in California
Prisons (May 2012).)
4)Argument in Support : The California State Sheriffs'
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Association states, "Unauthorized use of wireless
communications pose a major public safety threat while in the
hands of inmates serving time in state prisons, local
correctional facilities or juvenile facilities. Cell phone
confiscation in the California prison system continues to be
problematic. Cell phone access by inmates has been linked to
homicides inside and outside of correctional facilities,
systematic escapes, drug transactions, gang communication, and
victim harassment from inside the prison walls."
5)Argument in Opposition : The Ella Baker Center on Human Rights
argues "Current law allows for the criminalization of
unauthorized individuals who possess a wireless communication
device with a misdemeanor fine of up to $1,000. AB 2002
punishes anyone in possession of a wireless communication
device, including memory and SIM cards, with the intent to
deliver it to an incarcerated individual in a local
correctional or juvenile facility with a fine up to $5,000
and/or 6 months imprisonment in jail. The bill would also
provide that if a wireless communication device is found in
the possession of an incarcerated individual in a local
correctional facility, he/she is subject to a time credit
denial or loss of up to 90 days credit.
"Local correctional and juvenile facilities already have
disciplinary matrices that establish penalties for their
incarcerated individuals including loss of privileges, the
ability to bring new charges, etc. Also, current law already
has identified the offenses summarized in the bill as a
misdemeanor with an appropriate penalty. There is no basis or
demonstrated need for the startling increase in penalties
proposed under AB 2002. Further, the passage of realignment
as a response to the state's overcrowded prisons has
transferred duties to local correctional agencies. As county
jails are encouraged to use this opportunity to invest in
policies to reduce recidivism, an unnecessary law that would
increase penalties and subject more people to jail terms would
burden local correctional agencies, subvert the intention
under realignment, and hurt public policy."
6)Prior Legislation :
a) SB 26 (Padilla), Chapter 500, Statutes of 2011, provides
that except as otherwise authorized by law, or when
authorized by either the person in charge of the prison or
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other institution under the jurisdiction of CDCR or an
officer of the institution empowered to give that
authorization, a 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 any component thereof, is guilty of
a misdemeanor, punishable by imprisonment in the county
jail not exceeding six months, a fine not to $5,000 for
each device, or both that fine and imprisonment.
b) SB 139 (Alquist), of the 2011-12 Legislative Session,
would have required, only until January 1, 2014, 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, and require the department to report to the
Legislature at least quarterly regarding those searches, as
specified. SB 139 was vetoed.
c) SB 525 (Padilla), of the 2009-10 Legislative Session,
would have created 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.
d) SB 434 (Benoit), of the 2009-10 Legislation Session,
would have stated that any inmate or ward who possesses any
cellular telephone or other wireless communication device,
or any component thereof, including, but not limited to,
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 Committee on Appropriations' Suspense File.
e) SB 268 (Harman), of the 2009-10 Legislation Session,
would have created 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 268 was not heard by this Committee.
f) SB 655 (Margett), Chapter 655, Statutes of 2007,
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provides that the unauthorized possession of a wireless
communication device, as specified, by a person in a local
correctional facility is a misdemeanor, punishable by a
fine of not more than $1,000. The fine was required to be
placed into the inmate welfare fund.
g) AB 1267 (Leslie), of the 2005-06 Legislative Session,
would have made possession of a wireless communication
device by a prisoner in a state prison or a county jail a
misdemeanor. AB 1267 was held in the Senate Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
California State Sheriffs' Association
Chief Probation Officers of California
Los Angeles County Deputy Probation Officers Union, AFSCME Local
#685
Riverside Sheriffs' Association
Opposition
California Attorneys for Criminal Justice
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744