BILL ANALYSIS �
SB 892
Page 1
Date of Hearing: June 24, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 892 (Hancock) - As Amended: May 27, 2014
SUMMARY : Places additional due process procedures for
determining if an inmate is a member of or an associate of a
gang, and subject to placement in a Security Housing Unit (SHU).
Specifically, this bill :
1)Requires specified due process procedures for determining if
an inmate is a member of or an associate of a gang, and
subject to placement in a SHU, which must include at minimum
the following:
a) Timely, written, and effective notice that security
threat group validation is being considered, and the facts
upon which that consideration is based;
b) Decisionmaking by a dedicated and specially trained
classification committee;
c) A hearing at which the offender may be heard in person
and, absent an individualized determination of good cause,
has a reasonable opportunity to present available witnesses
and information;
d) An interpreter, if necessary, for the offender to
understand or participate in the proceedings;
e) An advocate to assist with the offender's investigation;
f) An independent determination by the committee of the
reliability and credibility of confidential informants, as
specified; and,
g) A written statement in plain language setting forth the
specific evidence relied upon, and the reasons for,
validation.
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2)Defines "determinate Security Housing Unit term" as a
determinate period of time that the inmate is placed in the
SHU because the inmate was found guilty of a serious offense,
as described in the California Department of Corrections and
Rehabilitation's (CDCR's) regulations.
3)Defines "indeterminate Security Housing Unit term" to mean an
indeterminate period that an offender is assigned to the SHU,
which may include security threat group (STG) affiliates and
offenders in protective custody.
4)Defines "Psychiatric Services Unit (PSU)" to mean a facility
designed and staffed to treat mentally disordered offenders
who are serving terms in the SHU.
5)Provides that the terms "SHU," "STG," "STG affiliate," and
"STG validation" have the same meaning assigned in CDCR's
regulations.
6)Authorizes an additional officer appointment by the Governor,
to oversee the security threat group validation and SHU
operations and conditions.
7)Requires the Office of the Inspector General (OIG), commencing
July 1, 2015, to review every determination completed on or
after July 1, 2015, prior to the offender being placed in a
SHU, and in which confidential information was used, that an
inmate is a gang member or associate, to determine whether the
minimum level of due process was provided and that the
determination was supported by the evidence.
8)Provides if the OIG concludes that the determination was not
supported by the evidence, or that the inmate was not provided
the minimum level of due process, the gang member or associate
classification would be deleted and the inmate would not be
placed in a SHU.
9)Requires, commencing on January 1, 2015, an inmate subject to
an indeterminate SHU term to be placed in the Step Down
Program and, for offenders who were placed in the SHU prior to
January 1, 2015, places a deadline of July 1, 2016 for CDCR's
designated review board to place offenders in the Step Down
Program.
10)States that the OIG, on or before July 1, 2016, must review
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the central files of each inmate who is subject to an
indeterminate SHU term who is denied progression within the
program to assess the CDCR's compliance with the program.
11)Requires an inmate subject to a determinate SHU term to
receive an individualized plan, within 30 days of placement in
the Step Down Program, and requires a copy of the plan to be
provided to the inmate and a copy to be placed in the inmate's
central file.
12)Requires an inmate to be provided with promising or
evidence-based programming to promote successful assimilation
back into the general prison population.
13)States that an inmate in the Step Down Program shall be
assessed by a correctional counselor every 90 days, in order
to monitor the inmate's progress. The correctional counselor
and the offender resource specialist shall provide the
offender with a progress report that outlines what
requirements the offender is not meeting and what the offender
is expected to do to progress within the Step Down Program.
14)Requires an interpreter to be provided during these meetings,
if necessary, so that the inmate can understand and
participate in the assessment, and a copy of the resulting
progress report to be placed in the inmate's central file.
15)States that the inmate shall have the opportunity to advance
to the next step of the Step Down Program after successful
participation in the current step for 180 days.
16)Requires CDCR to prepare a comprehensive reentry plan for
every offender who will parole directly out of the SHU or the
PSU into the community.
17)States, on or before July 1, 2016, and continually
thereafter, the OIG shall review the central file of each
offender who is denied progress within the Step Down Program
to assess the CDCR's compliance with this section.
18)Requires, within 30 days of an inmate beginning a determinate
SHU term, and by July 1, 2015, for all offenders who began
serving a determinate SHU term prior to January 1, 2015, CDCR
to develop an individualized plan for the offender, and
requires a copy of the plan to be provided to the inmate and a
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copy to be placed in the inmate's central file.
19)States that an inmate serving a determinate SHU term shall be
provided with promising or evidence-based programming, and
specifies that information obtained from the offender during
the programming shall not be used in a rules violation report
against the offender, or to keep the offender in the SHU.
20)Requires an inmate serving a determinate SHU term to be
assessed by a correctional counselor every 90 days, in order
to monitor the inmate's progress, where the inmate is to be
provided with a progress report that outlines what
requirements the inmate is not meeting and what the inmate is
expected to do to be eligible for additional privileges and
early release from the SHU.
21)Requires a copy of the progress report to be placed in the
inmate's central file.
22)Requires an interpreter to be provided during the assessment,
if necessary.
23)Allows an inmate serving a determinate SHU term to earn
credits toward reducing that term.
24)Mandates the OIG, commencing July 1, 2016, and annually
thereafter, to provide an audit report to the Governor and the
Legislature of inmates subject to a determinate term in a SHU
to assess compliance by CDCR.
25)Provides that an inmate in a SHU or PSU must have access to
educational programming, weekly face-to-face interaction with
uniformed and civilian staff, access to radio or television,
and the opportunity to earn additional specified privileges
and credits towards reduction of the inmate's sentence; and
requires the OIG, on or before July 1, 2016, and biennially
thereafter, to perform an audit to assess the CDCR's
compliance with these provisions.
26)States that CDCR shall create a behavior-driven progressive
incentives program that includes, but is not limited to, the
following, for any 30-day period where an inmate in the SHU or
PSU does not receive a rules violation report:
a) One additional phone call in the following month;
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b) One additional photograph, for a maximum of 10; and,
c) Four additional hours of recreational yard time in the
following month.
27)Requires mental health screening for an inmate placed in the
SHU and subsequent mental health assessments, as specified,
and requires the OIG, on or before July 1, 2016, and
biennially thereafter, to perform an audit to assess the
CDCR's compliance with these provisions.
28)States that any inmates found to be suffering from a serious
mental illness shall be removed from the SHU.
29)Requires CDCR to provide training to all correctional staff
in the SHU and PSU on how to respond to an individual
experiencing a psychiatric crisis in ways that reduce rather
than escalate the crisis.
30)States that CDCR must employ two ombudsmen to act as offender
resource specialists at each institution that has a SHU or
PSU, and be responsible for, among other things, assisting an
inmate with concerns about the inmate's responsibilities and
rights during confinement in one of those units, responding to
an inmate's family member's inquiries, and explaining SHU and
PSU policies to the public.
31)Mandates CDCR, commencing July 1, 2015, to collect specified
data regarding inmates subject to a term in a SHU.
32)Requires the OIG, commencing January 1, 2017, and biennially
thereafter, to use the data collected by CDCR to prepare
reports for the Legislature on specified criteria pertaining
to inmates in a SHU and a PSU.
33)Provides that an inmate in the SHU or the PSU who has
remained free of disciplinary action for six consecutive
months may be eligible for credits.
34)Requires the OIG to employ two secured housing specialists
for each institution that has a SHU or PSU to monitor the
programming and conditions of those SHUs.
35)Makes various Legislative findings and declarations regarding
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SHUs in California's state prisons.
EXISTING LAW :
1)States, notwithstanding any other law, a person who is placed
in a SHU, PSU, Behavioral Management Unit, or an
Administrative Segregation Unit for misconduct as described
below or upon validation as a prison gang member or associate
is ineligible to earn credits during the time he or she is in
the SHU, PSU, Behavioral Management Unit, or the
Administrative Segregation Unit for that misconduct. (Pen.
Code, � 2933.6, subd. (a).)
2)Requires an inmate found guilty of specified offenses to serve
a determinate term in the SHU, ranging from two months to 60
months. (Cal. Code of Regs, tit. 15, � 3341.5.)
3)Allows CDCR to place an inmate in the SHU if the inmate has
been deemed a threat to the safety of others or the security
of the institution. An inmate who has been validated as a
gang/STG member can be placed in the SHU for an indeterminate
term. (Cal. Code of Regs, tit. 15, � 3341.5.)
4)Assigns the OIG responsibility for reviewing departmental
policy and procedures, conducting audits of investigatory
practices, and conducting investigations of CDCR as requested
by the Governor, Secretary of CDCR, by a member of the
Legislature, or at the initiative of the Inspector General.
(Cal. Pen. Code, � 6126.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The Department
of Corrections and Rehabilitation (CDCR) currently confines
nearly 4,000 inmates in SHU facilities. Of these, almost
2,500 inmates are serving indeterminate terms; many of the
2,500 are serving SHU terms of several years or even decades.
"Psychological research has found that a lack of social
interaction can lead SHU inmates suffer from a variety of
psychological and psychiatric illnesses. These can include
chronic insomnia, panic attacks, and symptoms of psychosis
(including hallucinations).
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"SB 892 would create an infrastructure to ensure humane
conditions for SHU inmates, provide oversight and
accountability in the use of the SHU, provide for
evidence-based programming to inmates, and provide greater due
process."
2)Background : CDCR has SHUs in five of its institutions -
Pelican Bay State Prison, California State Prison in Corcoran,
California Correctional Institution in Tehachapi, California
State Prison in Sacramento, and California Institution for
Women. As of January 14, 2013, the OIG reported that these
SHUs had a population of 2,415 validated prison gang members
and associates. (OIG, Initial Report on CDCR's Progress
Implementing the Blueprint (April 2013) page 19.)
Inmates are assigned to the SHU for two reasons. First,
inmates may be assigned to the SHU for a determinate time
period as punishment for his actions within Pelican Bay. If
an inmate is found guilty of violating the rules or
regulations of the prison, for example, possessing a weapon,
he may be placed in the SHU for a specified period of time.
Second, if an inmate is validated as a member of one of seven
designated prison gangs, he may be placed in the SHU for an
indeterminate time period. According to CDCR, about 21
percent of inmates serving an indeterminate SHU term are
validated gang members and the remaining 79 percent are gang
associates. (CDCR, Security Housing Units Fact Sheet (Oct.
2013).)
As of February 27, 2014, CDCR has informed this Committee that
289 inmates have spent more than 10 years in a SHU; 46 inmates
have spent more than 20 years in a SHU; and 39 inmates have
spent more than 25 years in a SHU.
Historically, an inmate who was placed in the SHU as a
validated gang member or associate would serve the remainder
of his or her sentence in the SHU, unless the Institutional
Gang Investigator determined that the inmate has had no gang
activity for six years, or the inmate agrees to debrief.
Debriefing requires the inmate to provide gang investigators
with detailed information on alleged gang members and
associates. Most SHU inmates would choose not to debrief for
fear of their personal safety or fear of retribution against
their families. The six-year inactive standard was also very
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difficult to meet because any innocuous art work or
communication could be interpreted as gang activity.
In October 2012, CDCR implemented a 24-month pilot program
entitled "Security Threat Group Identification, Prevention,
and Management Instructional Memorandum." Under the STG Plan,
gang members and affiliates are placed in a step-down program
that provides for graduated housing, privileges, and personal
interaction with the goal of integrating participants back
into the general population of the prisons. There are five
steps in the Step Down Program. An inmate must remain in
Steps One and Two for a minimum of six months each. An inmate
must remain in Steps Three and Four for minimum of one year
each. Steps One through Four are completed in the SHU. Step
Five is in the general population, but the inmate is monitored
for gang activity. While there are recommended time frames
for each step, there is no limitation on how long an inmate
may remain in each step. Debriefing is still available for
inmates who do not wish to participate or complete the
step-down program.
The STG plan also changed how an inmate can be placed in the
SHU. Under the previous rules, a validated gang member or
associate can be placed in the SHU upon validation. Under the
STG Plan, a validated associate must also have a rules
violation in order to be placed in the SHU. However, a
validated gang member may still be placed in the SHU upon
validation. Additionally, the STG plan includes both prison
gangs and street gangs, potentially allowing a more expansive
group of inmates to be placed in the SHU.
In implementing the STG Plan, CDCR conducted reviews of
inmates currently in the SHU to determine whether their
continued placement in the SHU was appropriate. According to
information provided by CDCR, as of February 3, 2014, CDCR had
completed 394 reviews. Of the 394 inmates reviewed, 258 were
released to the general population. 131 inmates were retained
in the SHU and placed into various levels of the step-down
program. The remaining 5 inmates chose to debrief.
3)Inmate Hunger Strikes : On July 1, 2011, approximately 5,300
inmates in nine CDCR institutions began refusing meals; the
number of inmates peaked to more than 6,500 two days later.
The number of inmates gradually decreased until the hunger
strike ended on July 20, 2011. The hunger strike led by
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inmates housed in the Pelican Bay State Prison's SHU to
protest the conditions of the SHU. The inmates had five core
demands:
a) Individual accountability, rather than group punishment,
indefinite SHU status, and restricted privileges;
b) Abolish debriefing policy and modify active/inactive
gang status criteria;
c) Comply with U.S. Commission 2006 Recommendations
regarding an end to long-term solitary confinement;
d) Provide adequate food; and,
e) Expand and provide constructive programming and
privileges for indefinite SHU status inmates.
At the end of the hunger strike, CDCR officials agreed to do
the following: authorization of watchcaps for purchase and
state issue; authorization of wall calendars for purchase in
canteen; authorization of exercise equipment in SHU yards;
authorization of annual photographs for disciplinary free
inmates; approval for proctors for college examinations; use
of CDCR ombudsman for monitoring and auditing of food
services; authorization of sweatpants for purchase/annual
package; authorization of hobby items; and, one photo to
family per year. CDCR also agreed to conduct comprehensive
reviews of the SHU policies that include behavior-based
components, increased privileges based on disciplinary-free
behavior, a step-down process for SHU inmates, and a system
that better defines and weighs necessary points in the
validation process. (Office of the Inspector General,
Immediate and Expedited Review and Assessment of CDCR's
Response to the Issues Raised by the Hunger Strike (Oct. 17,
2011) pp. 1-2.)
On July 8, 2013, approximately 30,000 inmates joined in on a
second hunger strike led by Pelican Bay State Prison SHU
inmates. The inmates wanted more substantive changes to
CDCR's policy for validating inmates as gang leaders or
accomplices. Under the STG Plan, gang members are still be
placed in the SHU without requiring any rules violations and
there is still no time limitation to how long a person may
remain in the SHU based on gang affiliation. The hunger
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strike ended on September 5, 2013, with the promise of
legislative hearings on the use and conditions of solitary
confinement in California's prisons.
( (as of Mar. 31, 2014.)
4)OIG's Recent Review of CDCR's Step Down Program : The OIG
recently reviewed CDCR's Step-Down Program. According to the
OIG's report, "The STG Plan requires an offender to
participate in inmate programming or journaling before
progressing to the next step. As part of the pilot, inmates
placed in Steps 1 and 2 were to have program assessments
initiated, such as TABE (Test of Adult Basic Education)
testing and Correctional Offender Management and Profiling
Alternative Sanctions [COMPAS] assessments. Inmates placed in
Step 3 can participate in self-directed journals that are
intended to develop a system of values and strategies leading
to responsible thinking and behavior. Step 4 inmates may have
programming that includes education, violence prevention
programs, and gang diversion programs. If an inmate refuses
to participate in inmate programming or journaling, the inmate
will regress, as with the previous signature requirement shown
above.
"The OIG's fieldwork reviewed whether 150 inmates [footnote
omitted] assigned to the SDP based on their . . . case-by-case
review were continuing with their assigned step, progressed to
the next step, or regressed. As shown below, of the 150
sample inmates we reviewed, 98 SDP inmates had an initial or
180-day Institutional Classification Committee (ICC) review
[footnote omitted] subsequent to their case-by-case review and
therefore their progress or lack of progress could be
assessed. Although each of the 98 inmates had not been in
their assigned step for 12 months prior to the ICC's review,
the committee reported whether the inmate was participating in
the [Step Down Program] SDP.
"The OIG found that 69 of the 98 inmates (70 percent) had 'no
change' in their SDP status (continuing to program at their
current step down level), 7 inmates successfully progressed to
the next step, and 22 inmates regressed to a lower step. Of
the 22 inmates who regressed, OIG found that 17 (77 percent)
had regressed based on their refusal to participate in inmate
programming or journaling. The remaining 5 inmates regressed
for STG related behavior or refusal to sign their step down
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contract, as mentioned above, the department has recently
changed this signature requirement. The 17 inmates who
refused to participate in programming were originally placed
in steps 2 (eight inmates), 3 (six inmates), and 4 (three
inmates) but after committee review all 17 inmates regressed
to step 1 based on their refusal to participate in
programming. If an inmate regresses to step 1, he or she will
not earn credit towards completion of the 12 months required
in step 1 (before proceeding to step 2). To earn credits, the
inmate must notify the correctional counselor or case manager
of renewed intention to participate in the [Step Down Program]
SDP. (For full report, see OIG, Third Report on the
California Department of Corrections and Rehabilitation's
Progress Implementing its Future of California Corrections
Blueprint (March 2014),
.)
These initial findings suggest that there is a likelihood that
a large number of inmates participating in the Step Down
Program will become stagnant or regress and, as a result, will
be held in the SHU well beyond the three to four year design
of the Step Down Program.
5)Arguments in Support : The California Public Defenders
Association writes, "This proposed bill would provide
administrative overview and due process reforms to address the
issues of housing prison gang affiliated and mentally ill
inmates in security housing units (SHU). It would create an
officer under the head of adult institutions to oversee
security housing units. It would add Penal code sections 2696
et seq which would provide inmates facing placement in the SHU
due process protections and review by the Office of the
Inspector General if placement the placement was based on
confidential information. Offenders serving indeterminate SHU
terms will be placed in Step-Down Units with programming with
the goal of returning them to general population. Inmates who
will parole directly out of the SHU or Psychiatric Services
Units will receive comprehensive re-entry plans. The Office
of the Inspector General will review CDCR compliance.
Evidence based practices will be utilized and incentives
provided for good behavior during SHU terms.
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"These are smart, money saving reforms that will protect public
and prison safety and promote human dignity. Recently, public
attention has been focused on this issue due to several high
profile events. In 2013, California prisoners throughout the
state went on a prolonged hunger strike to demand changes in
the desperate conditions of inmates locked in the SHU, and in
particular, prison gang members without hope of ever being
released. For such status offenders the only path to release
is 'debriefing.' 'Debriefing' is the California Department of
Corrections and Rehabilitation's term whereby a prison gang
member or associate renounces their gang affiliation by naming
all of the other gang members and their practices. Since
California's state prisons are rife with inmate on inmate
violence, 'debriefing' has the potential to make the former
gang member a target. Such a policy also puts members of the
community at risk since 'debriefed' former gang members'
families become targets as well."
6)Arguments in Opposition : The Taxpayers for Improving Public
Safety argues, "Although the author infers that the SHU is
analogous to Alexsandr Solzhenitsyn's Gulags, they are not.
The structure of the cells and the units in which they are
located are exactly the same as those in lower security
prisons. Each inmate is allowed a television set and the same
property (books, toiletries, etc.) as that allowed for
similarly high risk classified inmates. The inmates do
communicate with each other both legally by speaking to each
other and illegally by sending written communications to each
other.
"What is different for the SHU inmates is that they are not
allowed direct contact with any person other than a prison
employee. I realize that this seems harsh, but it is
important to realize that the individuals are isolated so that
they will not direct criminal activity through third persons,
both inside and outside prison. Although there is not a
single spouse, sibling, parent or child of one of these
inmates that will accept the fact that their relative is as
dangerous as I have described, the fact is that that they are.
Because of cleric-penitent communications by which I have
received this information, I cannot disclose specific
instances. However, of the approximate 4,500 California
inmates in SHU at any one time, I can confidently assert that
90% of them represent a clear and present danger not only to
other inmates within the prison system, but also to the
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general public via their gang affiliations. Although it may
be hard to accept, it is a fact that the individuals in the
SHU use personal visits to communicate instructions for
criminal activity."
7)Related Legislation : AB 1652 (Ammiano) would have provided
that a prison inmate may only be placed in the SHU for a
violation of specified offenses and deleted the provision of
law making a person who is placed in a SHU upon validation as
a gang member or associate ineligible to earn credits. AB
1652 failed passage on the Assembly Floor.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California Public Defenders Association
Friends Committee on Legislation of California
National Association of Social Workers
Opposition
California Families Against Solitary Confinement
Taxpayers for Improving Public Safety
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744