BILL ANALYSIS
SB 1221
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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
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(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
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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):
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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,
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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.)
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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
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California Attorneys for Criminal Justice
Concerned Citizens for Prisoners
Prisoners' Rights Union
Analysis prepared by: Martin Gonzalez / apubs / 445-3268