BILL ANALYSIS
AB 1440
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Date of Hearing: April 13, 1999
Consultant: Ignacio Hernandez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
AB 1440 (Migden) - As Amended: April 8, 1999
SUMMARY : Repeals regulations issued by the Department of
Corrections (DOC) restricting media access to prisoners.
Specifically, this bill :
1)Restores the authority of a prisoner to mail outgoing
confidential materials to a media representative without
inspection by the DOC.
2)Restores the authority of a media representative to request
and conduct one-on-one interviews with specific prisoners.
3)Restores the authority of a media representative to utilize
recording devices and/or writing instruments during interviews
of prisoners without the prior approval of the DOC.
4)Prohibits an interview of a prisoner against his or her will.
5)Permits the DOC to place reasonable time, place, and manner
restrictions on an interview of a prisoner.
6)Prohibits an interview with a prisoner if the interview would
pose an immediate and direct threat to the security of the
institution or the physical safety of a member of the public.
7)Allows the DOC to fix the number of interviews per prisoner.
8)Allows the DOC to arrange pool interviews if the requests for
an interview with a prisoner are excessive.
9)Defines "representative of the news media" as, but not limited
to, a journalist who works for, or is under contract to, a
newspaper, magazine, wire service, or radio or television
program, or who through press passes issued by a governmental
or police agency or through similar convincing means, can
demonstrate that he or she is a bona fide journalist engaged
in the gathering of information for distribution to the
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public.
10)States the Legislature finds and declares that:
a) Free exchange of information from behind prison walls
benefits the public and fosters a safe and efficient prison
system;
b) The DOC has historically permitted media access to state
prisoners without endangering the safety of the prisons or
the public;
c) Members of the news media should be permitted to
interview state prisoners unless that access would pose an
immediate and direct threat to the security of the
institution or the safety of members of the public; and,
d) There is no legitimate reason for a blanket ban on media
interviews with prisoners.
EXISTING LAW/REGULATIONS :
1)Vests the Director of the DOC with the supervision, management
and control of state prisons and is responsible for the care,
custody, treatment, training, discipline and employment of a
person confined in those prisons. The Director may prescribe
rules and regulations for the administration of the prisons.
(Penal Code Sections 5054 and 5058.)
2)Requires that any restriction of a prisoner's rights during
confinement be reasonably related to legitimate penological
interests. (Penal Code Section 2600.)
3)Allows a prisoner to correspond confidentially with a public
official or an attorney provided that the prison authorities
may open and inspect mail to search for contraband. (Penal
Code Section 2601.)
4)Prohibits a prisoner from participating in a specific
face-to-face interview with a media representative. (DOC
regulations, Title 15, Section 3261.5 (a)(2).)
5)Prohibits a media representative from using a camera or
recording equipment during an interview without the prior
approval of the institution head or designee. (DOC
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regulations, Title 15, section 3261.5 (b).)
6)Permits media representatives to engage in interviews with
random prisoners. (DOC regulations, Title 15, section 3261.5
(a).)
7)Permits media representatives to engage in interviews with
random prisoners encountered during tour of detention
facility. (DOC regulations, Title 15, section 3261.5(a)(1).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Effective and
safe prison operations are not threatened by media access. In
fact, safe and effective correctional policy is enhanced by
accurate information and an informed public. There is no
legitimate reason for a blanket ban on media interviews with
prisoners.
"For more than 20 years, CDC allowed routine media interviews,
which included random or specific interviews. Such interviews
were conducted under conditions as set by wardens and could
include time, place and duration restrictions as well as
limits on the size of technical crews. In 1996, the CDC
adopted regulations to delete the authority for news media to
conduct specified prisoner interviews, including prearranged
specified prisoner interviews. CDC added specific regulatory
language that 'prisoners may not participate in
specific-person, face-to-face interviews.'"
2)1996 Emergency Regulations : In 1996, emergency regulations
were issued by the DOC which: (1) deleted news media from the
confidential correspondence authority, (2) deleted authority
for "specific person" media interviews, in addition to the
procedures which facilitated such interviews, and (3) added
language that stated, "Inmates may not participate in
specific-person face-to-face interviews."
3)Do Current Regulations Prevent Prisoner Notoriety ? Pursuant
to the current DOC regulations, a prisoner is prohibited from
being interviewed by a media representative if the
representative specifically requests an interview with the
prisoner. The DOC suggests that the goal of this regulation is
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to prevent the prisoner from gaining notoriety due to his or
her criminal exploits. However, a complete ban of
specifically arranged interviews does not necessarily
accomplish this objective. The media may publish stories ad
nauseum detailing the crimes committed by a prisoner without
conducting a personal interview.
4)Is the Ban On Specific Interviews Narrowly Tailored ? The DOC
regulation is likely overbroad as it impinges on a wrongfully
convicted prisoner's ability to publicize his or her case. In
this context, the prisoner is not seeking to gain notoriety
for his or her criminal deeds. Instead, the prisoner may
simply want to broadcast his or her case in hopes of gaining
the public's attention, witnesses with exculpatory evidence,
or any other person capable of assisting the prisoner. Under
the current DOC regulation, a media representative cannot
request an interview with the prisoner in order to broadcast
the prisoner's wrongful conviction.
5)Safety Concerns . The DOC has not provided any evidence
demonstrating that a media interview posed an immediate and
direct threat to an institution's security or a public
member's physical safety. Nonetheless, this bill allows the
administration head of a detention facility to prohibit an
interview if there are these types of safety concerns. This
provision is reasonable and likely effective.
6)Recording Devices . Under current DOC regulations, a media
representative may not utilize recording equipment during an
interview with a prisoner unless the representative receives
prior approval from the institution head or designee. (DOC
regulations 3261.5(b).) However, the regulation does not
articulate a standard for approving or denying a request to
use recording equipment. Consequently, the head of an
institution may arbitrarily refuse requests by media
representatives. This bill removes this unrestricted
authority. Instead, a media representative is allowed to use
recording devices unless such use poses a threat to the
security of the institution or to the safety of the public.
7)Confidentiality of Correspondence to Media . Prior to 1996,
the DOC allowed prisoner mail to media representatives to be
confidential. Such mail was not subject to the same
inspection required of general mail. However, following the
issuance of the 1996 regulations, mail to a media
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representative is now subject to the following restrictions:
a) The envelope must be sealed by the inmate before it is
turned over to a staff member for mailing; or,
b) The envelope must be sealed by the inmate in the
presence of a designated staff member before it is accepted
for mailing. (15 CCR 3142.)
In contrast, confidential mail must be handled as follows:
c) All nonconfidential inmate mail is subject to being read
in its entirety or in part by designated facility employees
facility before it is mailed for for an inmate. (15 CCR
3138.)
d) All outgoing confidential mail may be inspected, with or
without opening the mail, for cause only. (15 CCR Section
3144.)
8)Prior Legislation . SB 434 (Kopp), of the 1997-98 Legislative
Session, was vetoed. In his veto message, Governor Wilson
indicated that he wanted to prevent prisoners from gaining
notoriety. In addition, he asserted that denying media access
to prisoners would improve the chances that a prisoner would
be remorseful for crime.
9)Support .
a) The California Catholic Conference states, in part, "The
recent hearings on events in Corcoran State prison verifies
the reality of the finding and as well underlines the
importance of a particular piece of legislation which
assures that there will not again be a blanket ban on media
interviews with specified prisoners. It has hard to
imagine that some of the events which the hearings
revealed, would have happened had this bill been law at the
time."
b) The American Civil Liberties Union states, in part, "It
is crucial to maintain public accountability of the prison
system during a period of drastic change and growth,
including overcrowding and the sharp increase in the prison
system's proportionate share of the state budget. Because
prisons are closed institutions, the media's role in
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keeping the public informed bout how its tax dollars are
spent is vital."
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
California Attorneys for Criminal Justice
California Catholic Conference
Opposition
None on file
Analysis Prepared by : Ignacio Hernandez/ PUB. S. / (916)
319-3744