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