BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1440|
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THIRD READING
Bill No: AB 1440
Author: Migden (D), et al
Amended: 5/6/99 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-0, 6/8/99
AYES: Vasconcellos, Burton, McPherson, Polanco
NOT VOTING: Johnston, Rainey
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 69-7, 5/13/99 - See last page for vote
SUBJECT : State prison inmates - news media
correspondence and
interviews
SOURCE : First Amendment Coalition
DIGEST : This bill overrides by statute the 1996
regulations adopted by the Department of Corrections which
(1) deletes media from inmate confidential communications
authorization which had previously been allowed by
regulation and (2) limits news media personal prisoner
interviews to random only (while otherwise touring an
institution), unless the media person visits or contacts
the inmate using the same means as any member of the public
(through monitored phone calls, non-confidential
correspondence, or visits with restrictions on use of
writing materials and a prohibition on recording devices
and cameras), and makes related changes.
CONTINUED
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ANALYSIS : Under existing law, the Director of the
Department of Corrections is vested with the supervision,
management and control of the 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)
Existing law generally provides that state prisoners may,
during confinement, be deprived of only such rights as is
reasonably related to legitimate penological interests.
(Penal Code Section 2600)
Existing law specifies certain civil rights of a state
prisoner, including the right to correspond confidentially
with any member of the State Bar or holder of public
office, provided that the prison authorities may open and
inspect incoming mail to search for contraband. In
addition, restrictions on obscene publications or writings
and matters tending to incite violence may specifically be
imposed. (Penal Code Section 2601)
Existing regulations of the Department of Corrections do
the following:
1.Prohibit a prisoner from participating in a specific
face-to-face interview with a media representative. (DOC
regulations, Title 15, section 3261.5 (a)(2).)
2.Prohibit a media representative from using a camera or
recording equipment during an interview without the prior
approval of the institution head or designee. (DOC
regulations, Title 15, section 3261.5 (b).)
3.Permit media representatives to engage in interviews with
random prisoners. (DOC regulations, Title 15, section
3261.5 (a).)
4.Permit media representatives to engage in interviews with
random prisoners encountered during tour of detention
facility. (DOC regulations, Title 15, section
3261.5(a)(1).)
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This bill does the following:
1.States the Legislature finds and declares that (1) Free
exchange of information from behind prison walls benefits
the public and fosters a safe and efficient prison
system; (2) The Department of Corrections has
historically permitted media access to state prisoners
without endangering the safety of the prisons or the
public; (3) 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, (4) There is no legitimate reason for a blanket ban
on media interviews with prisoners.
2.Provides that the Department of Corrections shall permit
the news media to interview prisoners in person,
including prearranged interview with prisoners, unless
the interview poses a direct threat to the security of
the institution or the physical safety of a member of the
public.
3.Allows news media to use necessary tools of the trade to
conduct prisoner interviews, including writing materials
and audio and video recording devices.
4.Defines "representative of the news media" to include,
but not be limited to, a journalist who works for, or is
under contract to, a newspaper, magazine, wire service,
book publisher, or radio or television program, or
station 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 public.
5.Provides that the department shall permit the news media
to receive confidential correspondence from a prisoner
unless to do so would pose an immediate and direct threat
to the security of the institution or the safety of the
public.
6.Makes related changes.
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History of the Issue - Media Access to State Prison Inmates
1.Until comparatively recently, prisoners in California and
widely throughout the United States were determined to be
"civilly dead" while incarcerated.
2.In 1968, Chapter 1402, Statutes of 1968, was enacted to
restore some rights to inmates and in 1975, former Penal
Code Sections 2600 et seq. - "Chapter 3. Civil Death of
Prisoners" - were repealed and replaced with new Penal
Code Sections 2600 and 2601 - "Chapter 3. Civil Rights
of Prisoners" (Chapter 1175, Statutes of 1975).
3.The 1975 law provided that during any periods of
confinement, state prisoners may only be deprived of
rights "as is necessary in order to provide for the
reasonable security of the institutions . . . and for the
reasonable protection of the public."
4.From 1975 through 1994, the court test for evaluating
California Department of Corrections "restrictions on
state prisoners" was articulated as follows:
A. Were any "rights" implicated?
B. If they were, did a "reasonable security" problem
exist which might permit a deprivation of rights under
the statute?
C. If so, to what extent were deprivations of those
rights "necessary" to satisfy reasonable security
interests? (In Re Arias [1986] 42 Cal.3rd 667)
1.For a period of time prior to 1971, the Department of
Corrections allowed liberal access by news media to
prison inmates, including access to specifically-named
inmates. That policy lead to some inmates being
interviewed quite often and allegedly lead to those
inmates becoming able to cause other inmates to follow
the tenants of those inmates who were the subject of
frequent interviews about the prison system. The media
coverage of some few inmates resulted in some referring
to a "Big Wheel" theory of the acquired power of those
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inmates.
2.In 1971, the Department adopted a regulation prohibiting
media access to specifically named prisoners for
interviews.
3.In 1974, that regulation was upheld by the United States
Supreme Court in Pell v. Procunier (417 U.S. 817 [1974]).
The Court found that there was a rational connection
between the regulation and the legitimate governmental
interest used in justification; that an alternative means
of exercising the right was available to inmates; the
impact of accommodating the right asserted on others and
the allocation of prison resources was considered; and
there was no ready alternative which would accommodate
the right at a de minimus cost to valid penological
interests. (The Court found that a "prison inmate
retains those First Amendment rights that are not
inconsistent with his status as prisoner or with the
legitimate penological objectives of the corrections
system" and that "rights of the media appellants under
the First and Fourteenth Amendments are not infringed"
since they can still visit prisons and talk to inmates at
random.) In another case, the Court invalidated
California Department of Corrections regulations which
allowed inmate mail to be censored for specified grounds,
including that inmates "unduly complain" or "magnify
grievances" in correspondence. ( Procunier v. Martinez ,
416 U.S. 396, 416 [1974])
4.When the new 1975 "deprivation of rights" test was
enacted in California, the Department of Corrections
again allowed access to specifically-named prison
inmates.
5.In Turner v. Safley (482 U.S. 78 [1987]) the general test
for limiting inmate rights was held to be whether the
restriction "is reasonably related to legitimate
penological interests." That standard applies in the
absence of a stricter test, such as that adopted in
California in 1975.
6.In 1994, Penal Code Section 2600 was changed so that
generally "A person sentenced to imprisonment in a state
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prison may during that period of confinement be deprived
of such rights, and only such rights, as is reasonably
related to legitimate penological interests." Thus
California generally adopted the Turner - or "Federal" -
standard for limiting inmate rights.
7.In 1996, emergency regulations were issued by the
Department of Corrections which (1) deleted news media
from the confidential correspondence authority and (2)
deleted authority for "specific person" media interviews
along with the procedures which had existed to facilitate
such interviews (and added language that: "Inmates may
not participate in specific-person face-to-face
interviews.") The Department based its regulations
primarily on the adoption of the Turner standard in
California in 1994.
8.The Office of Administrative Law and the Department
engaged in considering deficiencies noted by the OAL in
the original submission by the Department of the
regulations for permanent approval of the emergency
regulations which change the media contact provisions.
The Department resubmitted the regulations for approval
on March 3, 1997. Those changes were subsequently
approved and are currently in effect.
Department of Corrections Regulations Pertaining to
Confidential Correspondence
For a number of years, until 1996, Department of
Corrections regulations which allowed state prison inmates
to correspond confidentially with specified person,
included "A representative of the public news media defined
as a full time reporter for a daily newspaper, daily radio
or television programs, and recognized general coverage
news magazines." (15 California Code of Regulations [CCR]
Section 3141[c][6])
The general regulations pertaining to confidential
communications applied to news media communications. All
outgoing confidential mail was - and still is - subject to
specified procedures, including either that:
"(1) The envelope must be sealed by the inmate before it
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is turned over to a staff member for mailing; or,
(2) 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)
Outgoing confidential mail may be inspected, with or
without opening the mail, for cause only. (15 CCR Section
3144)
Incoming confidential mail is subject to the following
review:
"To determine the possible presence of contraband all
incoming confidential mail will be inspected prior to
delivery to an inmate. Confidential mail will be opened
and inspected for contraband only and only in the
presence of the inmate addressee. Inspecting
correctional officials will not read any of the contents
of the confidential mail." (15 CCR Section 3144)
The Department of Corrections promulgated emergency
regulations in 1996 to delete news media from the
regulatory provisions pertaining to confidential
communications; those regulations remain in effect today.
NOTE: The general regulation pertaining to inmate mail
includes:
"(a) All nonconfidential inmate mail is subject to being
read in its entirety or in part by designated employees
of the facility before it is mailed for or delivered to
an inmate. The institutional head or designee may reject
mail sent by or to an inmate as provided in section
3136." (15 ccr 3138)
Department of Corrections Regulations Which Applied to News
Media Interviews
For over 20 years, the Department of Corrections allowed
routine media interviews which included random or specific
person interviews. Such interviews were to be conducted
under conditions set by the institution head (wardens) and
could include time, place and duration limits as well as
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limits on the size of technical crews. Interviews with
specified prisoners were permitted with prior approval;
limited to no more than one interview in a 90-day period
for inmates in administrative segregation with a media
"pool" option for such inmates. (15 CCR Section 3261.5)
The Department of Corrections promulgated emergency
regulations in 1996 to delete the regulatory authority for
news media to conduct specified prisoner interviews,
including any pre-arranged specified prisoner interviews.
The Department added specific regulatory language that
"inmates may not participate in specific-person
face-to-face interviews."
The Department indicates that media may visit inmates as
would any person who seeks such visits. Visits are to be
arranged by the media person and the inmate; the Department
indicates that, as with any day visits, no writing
materials nor recording devices are allowed.
Definition of "Representative of the News Media"
This bill contains a new definition of "representative of
the news media" which is to apply both for confidential
communications and access to interviews with inmates. That
definition is:
. . . a journalist who works for, or is under contract to,
a newspaper, magazine, wire service, book publisher, or
radio or television program, or station 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 public.
The Department had used a narrower definition in its
regulations:
"A representative of the public news media defined as a
full time reporter for a daily newspaper, daily radio or
television programs, and recognized general coverage news
magazines." (15 California Code of Regulations [CCR]
Section 3141[c][6])
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Prior Legislation :
SB 434 (Kopp) passed the Senate 27-8, 9/10/97 and was
vetoed by the Governor October 12, 1997
Governor's Veto Message:
"This bill would, among other provisions, require the
Department of Corrections to permit representatives of
the news media to interview prison inmates in person,
including prearranged interviews with specified
prisoners. The measure would also require the news media
to receive confidential correspondence from a prisoner,
under specified conditions.
"Under current law, the Director of Corrections is vested
with the supervision, management and control of the state
prisons and may prescribe rules and regulations for the
administration of the prisons. In that connection, the
department has established regulations that permit media
representatives random face-to-face interviews, although
prearranged interviews with specific prisoners are not
allowed. However, representatives of the media are not
prohibited from visiting specific inmates like everyone
else on assigned visiting days. Moreover, inmates are
not restricted from communicating with media
representatives, but their correspondence is not
considered confidential as with attorneys, the courts and
federal, state and local officials.
"This measure invalidates those regulatory changes and
permits random as well as in person, prearranged
interviews with specified prisoners. The measure also
permits the news media to receive confidential
correspondence from a prisoner. This bill is sponsored
by the Society of Professional Journalists who are
seeking greater access to prisoner information allegedly
in the public's interest.
"The purpose of imprisonment is punishment and deterrence
of crime. Those that are housed in state prison should
not be treated as celebrities. Interviews with prisoners
about their crimes tend to glamorize criminal activity
and criminals at the cost of pain to crime victims. Such
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attention is a disincentive to inmates to focus upon the
remorse that is essential while in prison to prepare for
any eventual release to society. This notoriety also
enables the thug to gain stature within the prison
community that often encourages negative behavior by
other inmates, thereby threatening the safety and order
of the institution. Just as the Legislature has enacted
a ban upon activities which would allow a criminal to
profit materially from his crime, so should prison
officials prevent media exposure that allows the criminal
to enjoy his notoriety at the expense of others.
"The First Amendment does not guarantee the press a
constitutional right of special access to information not
available to the general public, nor does it cloak the
inmate with special rights of freedom of speech. The
regulations currently in force are properly balanced to
achieve legitimate objectives."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/14/99)
First Amendment Coalition (source)
California Newspapers Association
California Correctional Peace Officers Association
American Civil Liberties Union
California Catholic Conference
California Public Defenders Association
Mental Health Association in California
Society of Professional Journalists
California Broadcasters Association
ARGUMENTS IN SUPPORT : According to the author's office,
AB 1440 restores the ability of the press to conduct
interviews with inmates, consistent with the CDC policy
that had worked well for the twenty years. Media access
provides the public with the necessary information to reach
intelligent and informed opinions and view about the
operations of the correctional system.
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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
keeping the pubic informed about how its tax dollars are
spend is vital.
AB 1440 provides the proper balance between the need for
media access and the need for prison security and autonomy.
ASSEMBLY FLOOR : 69-7, 5/13/99
AYES: Aanestad, Ackerman, Alquist, Aroner, Bates, Battin,
Bock, Brewer, Briggs, Calderon, Campbell, Cardenas,
Cedillo, Corbett, Correa, Cox, Cunneen, Davis, Dickerson,
Ducheny, Dutra, Firebaugh, Floyd, Frusetta, Gallegos,
Hertzberg, Honda, House, Jackson, Kaloogian, Keeley,
Knox, Kuehl, Leach, Lempert, Longville, Lowenthal,
Machado, Maldonado, Margett, Mazzoni, McClintock, Migden,
Nakano, Olberg, Oller, Robert Pacheco, Rod Pacheco,
Papan, Pescetti, Reyes, Romero, Runner, Scott, Shelley,
Soto, Steinberg, Strickland, Strom-Martin, Thompson,
Torlakson, Washington, Wayne, Wesson, Wiggins, Wildman,
Wright, Zettel, Villaraigosa
NOES: Ashburn, Baldwin, Florez, Granlund, Havice, Leonard,
Maddox
NOT VOTING: Baugh, Cardoza, Thomson, Vincent
RJG:jk 7/14/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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