BILL ANALYSIS                                                                                                                                                                                                    




                                                          SB 1221
                                                         Page 1

Date of Hearing: July 11, 1995
Counsel:       Martin Gonzalez


                ASSEMBLY COMMITTEE ON PUBLIC SAFETY

          SB 1221 (Calderon) - As Amended:  May 30, 1995


  ISSUES: I.  SHOULD CERTAIN DESIGNATED CIVIL RIGHTS OF STATE  
            INMATES ENUMERATED IN PENAL CODE 2601 BE DELETED? 
  
         II.SHOULD INMATES BE ENTITLED TO ONLY THOSE RIGHTS  
       ESTABLISHED BY THE STATE AND FEDERAL CONSTITUTIONS?

        III.SHOULD LEGISLATIVE FINDINGS BE ADOPTED STATING THAT  
       THE PROVISION OF ANY PRIVILEGES TO INMATES IN THE STATE  
       PRISON MAY BE GRANTED PURSUANT TO PRISON RULES OR  
       REGULATIONS PROMULGATED FOR THAT PURPOSE?

 DIGEST

 Under current law:

1) The Legislature finds and declares that the purpose of  
   imprisonment for crime is punishment.  (Penal Code Section  
   1170.)

2) The Director of the California Department of Corrections (CDC)  
   is vested with the supervision, management and control of state  
   prisons and is responsible for the care, custody, treatment,  
   training, discipline and employment of persons confined in  
   those prisons.  The Director may prescribe rules and  
   regulations for the administration of the prisons.  (Penal Code  
   Sections 5054 and 5058.) 

3) State prisoners may, during confinement, be deprived of only  
   those rights as are reasonably related to legitimate  
   penological interests.  (Penal Code Section 2600.)
 
4) Certain civil rights of a state prisoner are specified.  For  
   instance, the right to own property, correspond confidentially  
   with any member of the State Bar, receive and read all legal  
   materials, have personal visits, initiate civil actions  








                                                          SB 1221
                                                         Page 2

   (subject to a $3 fee), marry, and make a will, are all subject  
   to specified limitations.  Restrictions on obscene publications  
   or writings and matters tending to incite to violence may  
   specifically be restricted.  (Penal Code Section 2601.) 
   
 This bill:

1) Eliminates certain enumerated rights contained in Penal Code  
   Section 2601. 
2) Provides that a state prisoner is entitled only to those rights  
   established by the California and the United States  
   Constitutions.

3) Provides that the Legislature finds and declares that the  
   provision of any 
privileges to inmates in the state prison may be granted pursuant  
to prison rules or regulations promulgated for that purpose.

 COMMENTS

1)   Purpose.  According to the author:

        The intent of this bill is to return control of most  
       inmate activities to the Director of the California  
       Department of Corrections.  By most we mean those not  
       guaranteed by the Constitution.  These activities, by  
       removing them from statute as "rights," would effectively  
       become privileges.  As such, they may be given or revoked.   
       This will provide the Director with a more effective too  
       for behavior modification.  

2)  Intent of the Sponsor.  According to the Senate Criminal  
   Procedure Committee's analysis of SB 1221, the intent of  
   California Correctional Peace Officers Association ("CCPOA"),  
   is to run prisons in a common sense manner that returns control  
   of "most" inmate activities to the Director of the CDC.  By  
   "most", the CCPOA means those activities not guaranteed by  
   constitutions as a "right."   

   Those activities remaining would be privileges.  As privileges,  
   they can be given or revoked, based on an inmate earning that  
   privilege.  Only then can inmates be taught that they are  
   accountable for their actions and there is a penalty for  
   breaking the rules and a privilege for following them.  To do  








                                                          SB 1221
                                                         Page 3

   otherwise, is to handcuff staff and only communicates the  
   misguided notion that people deserve something for nothing.

3)  Family Visits.  This bill permits family visits, subject to  
   "legitimate penological interests."  Visiting will be a  
   privilege which can be an incentive for good behavior. Some  
   inmates may not be permitted visits if they are murderers,  
   rapists, or have recently assaulted staff or other inmates. 

4)  Changes to "Inmate Rights".  The court test set in statute from  
   1975 until January 1, 1995, for evaluating California  
   Department of Corrections authority to place "restrictions on  
   state prisoners" was articulated as follows: 
 
   a)  Are any "rights" implicated? 
 
   b)  If they are, does a "reasonable security" problem exist  
   which might permit a deprivation of rights under the statute? 
 
   c)  If so, to what extent are deprivations of those rights  
   "necessary" to satisfy reasonable security interests? 
 
   Thattest was replaced on January 1 of this year when SB 1260  
   (Presley), Chapter 555, Statutes of 1994, took effect.  The new  
   test is the same used in the Federal Courts:  is the  
   restriction "reasonably related to legitimate penological  
   interests."  (See, for example,  Turner v. Safley 1987, 482 U.S.  
   78.) 
 
5)  SB 1260.  SB 1260 also modified the previous list of specific  
   rights contained in Penal Code Section 2601.  Each of the  
   remaining civil rights is further subject to restrictions based  
   upon the current test of legitimate penological interests  
   (underlined portions added by SB 1260): 


















                                                          SB 1221
                                                         Page 4


   a)  To inherit, own, sell, or convey real or personal property,  
   including all written and artistic material produced or created  
   by such person during the period of imprisonment.  However, to  
   the extent authorized in Section 2600, the Department of  
   Corrections may restrict or prohibit sales or conveyances that  
   are made for business purposes. 
 
   b)  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. 
 
   c)  1)  To purchase, receive, and read any and all newspapers,  
   periodicals, and books accepted for distribution by the United  
   States Post Office.   Pursuant to this section, prison  
   authorities  may exclude any of the following matter:

            i.   Obscene publications or writings, and mail  
          containing  information concerning where, how, or from  
          whom this matter  may be obtained. 
 
           ii.   Any matter of a character tending to incite  
          murder, arson,  riot, violent racism, or any other form  
          of violence. 
 
          iii.   Any matter concerning gambling or a lottery. 

        2)  Nothing in this section shall be construed as limiting  
       the right of prison authorities to do the following: 
  
            i. Open and inspect any and all packages received by  
               an inmate. 
 
           ii. Establish reasonable restrictions as to the number  
               of newspapers, magazines, and books that the inmate  
               may have in his or her cell or elsewhere in the  
               prison at one time. 

   d)  To have personal visits.  However, CDC may provide any that  
   are necessary for the reasonable security of the institution. 
 
    e) To initiate civil actions,  subject to a three dollar ($3)  
   filing fee  to be collected by the Department of Corrections,  








                                                          SB 1221
                                                         Page 5

   and subject to Title  3a (commencing with Section 391) of the  
   Code of Civil Procedure. (Code of Civil Procedure section  
   pertaining to vexatious litigants.) 
 
   f)  To marry. 
 
   g)  To create a power of appointment. 

   h)  To make a will. 
 
   i)  To receive all benefits provided for in Sections 3370 and  
   3371 of the Labor Code and in Section 5069.  (Workers'  
   Compensation, if qualified, following incarceration.)
 
   This bill eliminates the following "rights":  To correspond  
   confidentially with any member of the State Bar, to have  
   personal visits, to marry, to create a power of appointment, to  
   make a will, to receive all benefits provided for in Sections  
   3370 and 3371 of the Labor Code and Penal Code Section 5069.   
   To the extent these rights are eliminated would depend upon 
the interpretation of the California and United States  
   Constitutions.
 
6)   Other Rights in Statute/Found Constitutionally Protected.   
Existing law also contains other rights of prisoners.  For  
example: 
 
   a)  Injury to a prisoner, not authorized by law, is punishable  
   in the same manner as for someone not imprisoned.  (Penal Code  
   Section 2650.) 
  
   b)  Unlawful to use any cruel, corporal or unusual punishment  
   or any treatment or lack of care which would injure or impair  
   the health of the prisoner.  (Penal Code Section 2652; see  
   Article 1, Section 15, California Constitution.)
 
   c)  Prisoners shall be provided with a bed, sufficient  
   blankets, garments of substantial material, and with sufficient  
   and wholesome food conducive to good health.  (Penal Code  
   Section 2084.)
 
    d)  It is the intent of the Legislature that all prisoners  
       shall be afforded reasonable opportunities to exercise  
       religious freedom. (Penal Code section 5009.)








                                                          SB 1221
                                                         Page 6

  
    e)  A copy of the rules and regulations concerning duties and  
       obligations of prisoners shall be furnished to each inmate.  
        (Penal Code section 2080.) 
   A number of Constitutional protections which are noted in  
   California Criminal Law,  2nd Edition (Witkin and Epstein)  
   include: 
 
   a)  Access to courts for appeals of a conviction and access to  
   courts to respond to civil actions brought against an inmate.
 
   b)  Access to counsel, including confidential correspondence  
   with an attorney. 
 
    c)  Access to jailhouse lawyers.
  
    d)  Access to lawbooks and legal materials.
  
    e)  Right to marry.

7)   Purpose of Imprisonment.  The Indeterminate Sentence Law was  
repealed and replaced by the Determinate Sentencing Law, which  
became operative on July 1, 1977 (SB 42 (Nejedly), Chapter 1139,  
Statutes of 1976).  Since that time, Penal Code Section 1170 has  
stated that "the Legislature finds and declares that the purpose  
of imprisonment for crime is punishment." 

8)   Prior Legislation.  SB 1260 (Presley), Chapter 555, Statutes  
of 1994, provided, among other things, that a person sentenced to  
imprisonment in a state prison has rights subject to limitation  
due to legitimate penological concerns.  Narrows the publications  
which may be possessed by inmates, and requires a $3 filing fee  
for inmate initiated civil lawsuits. 
9)  Potential Effect.  Limits the rights of inmates to those  
   protected by the California and/or United States Constitutions.

  SOURCE:    California Correctional Peace Officers Association 

  SUPPORT:   Department of Corrections 
            Doris Tate Crime Victims Bureau

  OPPOSITION:  American Civil Liberties Union
            Friends Committee on Legislation
            31 Individuals 








                                                          SB 1221
                                                         Page 7

            California Attorneys for Criminal Justice
            Concerned Citizens for Prisoners
            Prisoners' Rights Union

  Analysis prepared by:  Martin Gonzalez / apubs / 445-3268