CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 3043

Author:(Jones-Sawyer)

As Amended Ver:August 4, 2020

Majority vote

SUMMARY:

Requires the Department of Corrections and Rehabilitation (CDCR) to approve an attorney's request to make a confidential call to a client they represent at a CDCR facility, and requires CDCR to provide the inmate at least 30 minutes per month, per inmate, per case, to make such calls unless the attorney or the inmate requests less time.

The Senate Amendments:

1. Eliminate the requirement that the attorney's place of work be at least 75 miles away from the facility where the inmate is located.
2. Specify that the attorney must make the request for the call rather than the inmate.
3. Specify that CDCR must provide 30 minutes per month, per inmate, for each case the inmate has, rather than simply providing 30 minutes per month per inmate.

COMMENTS:

According to the Author:

"Access to confidential conversations with an attorney is critical to the health and safety of inmates. A private conversation with one's counsel may be the only way those incarcerated are able to report instances of abuse or mistreatment. While in-person communication is ideal, that cannot always be arranged. This bill will protect access to meaningful legal representation when attorneys are unable to appear in person. With all of the changes in operation of state facilities following the COVID-19 pandemic effective and protected communication with legal counsel is of the utmost importance."

Arguments in Support:

According to the California Public Defenders Association, "Under current law, state prison inmates have a constitutional right to communicate privately with their attorneys. However, because many inmates are not housed in their home county, they are frequently held in prisons located hundreds of miles from their attorney's actual office, making in-person visitation difficult, if not impossible.

"Even if an attorney is able to travel to a prison far away from their place of business, the current system places a burden on both the attorney (who must spend an entire day travelling for a single thirty minute interview) and on prison staff (who must spend time screening the attorney before entry to the prison). The need to reform the existing limitations on the attorney-client communication process in state prison is particularly evident given the current pandemic, because in-person visitation places attorneys, inmates, and staff at risk of infection.

"AB 3043 addresses this problem by simply requiring prisons to permit short calls between inmates and their attorneys, provided that the attorney works more than 75 miles from the prison in which the inmate is housed."

Arguments in Opposition:

None on file

FISCAL COMMENTS:

According to the Senate Appropriations Committee, unknown costs ranging from minor and absorbable to the hundreds of thousands of dollars, depending on if this measure prompts increased demand for confidential calls and if there currently exists sufficient infrastructure, resources, and personnel to meet the demand. (General Fund)

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager, Carrillo, Santiago, Wicks

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

ASSEMBLY FLOOR: 76-0-3

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Obernolte, Patterson, Petrie‑Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Low, Muratsuchi, Quirk

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Melendez, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Jones

UPDATED:

VERSION: August 4, 2020

CONSULTANT: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0003530

 THIRD READING  

Bill No: AB 3043

Author: Jones-Sawyer (D), et al.

Amended: 8/4/20 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/31/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/20/20

AYES: Portantino, Bates, Bradford, Hill, Jones, Leyva, Wieckowski

ASSEMBLY FLOOR: 76-0, 6/8/20 (Consent) - See last page for vote

SUBJECT: Corrections: confidential calls

SOURCE: Conference of California Bar Associations

DIGEST:

This bill requires the Department of Corrections and Rehabilitation (CDCR) to approve an inmate’s or attorney’s request to make confidential calls, as specified.

ANALYSIS: Existing federal law provides that in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense. (U.S. Const., 6th Amend.)

Existing state law:

1. Provides that in a defendant in a criminal case has the right to the assistance of counsel for the defendant’s defense. (Cal. Const., art. I, § 15.)
   
2. Provides that communications made in the context of an attorney-client relationship are privileged, entitling the holder of the privilege to refuse to disclose, and to prevent another from disclosing, the communication. (Evid. Code, § 954.)
3. Provides that the right of any person to claim the attorney-client privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. (Evid. Code, § 912, subd. (a).)
   
4. Provides that a person sentenced to imprisonment in a state prison or to imprisonment in county jail for a felony offense may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)
   
5. Provides that inmates have 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. (Pen. Code, § 2601, subd. (b).)
   
6. Provides that the Director of CDCR may prescribe and amend rules and regulations for the administration of the prisons and requires the Director to maintain, publish, and make available to the general public, a compendium of such rules and regulations. (Pen. Code § 5058, subds. (a) and (b).)
   
7. Provides that inmates may not use institution phones or payphones located on institution property except as specifically authorized by CDCR. (Cal. Code Regs., tit. 15, § 3018.)
   
8. Defines a “confidential call” as a phone call between an inmate and the inmate’s attorney which both parties intend to be private. (Cal. Code Regs., tit. 15, § 3282, subd. (a)(2).)
   
9. Provides that “confidential calls” may be approved on a case-by-case basis by the institution head or designee, upon written request from an attorney on the attorney’s office letterhead stationery. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(1).)
   
10. Requires an attorney who wishes to conduct a confidential call with their client to make a written request in which the attorney provides in writing the following personal and professional information: name; mailing address; date of birth; valid driver’s license or state-issued identification card number; proof of current registry and good standing with a governing bar association; and, indication of the jurisdiction(s) licensed to practice law. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(1).)
    
11. Requires requesting attorneys to report any prior felony convictions or pending arrest dispositions, describe and explain any prior suspension or exclusion from a correctional facility, and declare under penalty of perjury one or more of the following:
    1. They are the named inmate’s attorney either by appointment by the court or at the inmate’s request;
    2. They have been requested by a judge to interview a named inmate for purposes of possible appointment as counsel by the same court;
    3. They are requesting to call a named inmate who may be a witness directly relevant to a legal process, purpose, or proceeding;
    4. They are seeking to interview a named inmate, at the request of the inmate, for the purpose of representation of the inmate in a legal process, for a legal purpose or in a legal proceeding; and,
    5. They have been requested by a third party to consult with the named inmate when the inmate cannot do so because of a medical condition, disability or other circumstance. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(2).)
       
12. Provides that any false statement or deliberate misrepresentation of facts specific to the information required above shall be grounds for denying the request or cause for subsequent suspension or exclusion from all institutions/facilities administered by the department. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(3).)
    
13. Provides that the date, time, duration, and place where the inmate will make or receive the call, and manner of the call are within the discretion of the institution head, except as specified. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(5).)
    
14. Provides that it is within the discretion of the institution head to approve or deny a confidential call and that as long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(6).)
    
15. Requires that an attorney visit, defined as a private consultation between an inmate and the inmate’s attorney or attorney representative, be conducted in a confidential area specified by the institution/facility. Provides that attorney visiting shall normally be accommodated during the institution/facility regularly scheduled visiting days and hours. Delineates the process by which an attorney obtain approval to conduct attorney visits with inmate-clients. (Cal. Code Regs., tit. 15, § 3178, subd. (b).)

This bill:

1. Requires CDCR to approve an inmate’s or attorney’s request, whoever the institution designates to make the request, to make a confidential call. Requires that the approved confidential call be at least 30 minutes once per month, per inmate, per case unless the inmate or attorney requests less time.
2. Defines confidential call as “a telephone call between an inmate and their attorney that both the inmate and attorney intend to be private.”

Background

The U.S. Constitution and the state Constitution guarantee the right to the assistance of an attorney for persons who are the subject of criminal prosecutions. The right to an attorney applies at the trial stage of a criminal proceeding and also during appeal. (See e.g., Anders v. California (1967) 386 U.S. 738, 741.) Communication with counsel is critical to the attorney-client relationship and necessary in order for the attorney to provide adequate representation. For these reasons, denying an inmate access to use the phone to call his or her attorney is unconstitutional in many circumstances. (See e.g. Tucker v. Randall (1991) 948 F.3d 388, 391.)

The privileged communication between attorney and client is one of the oldest recognized privileges for confidential communications. (See Swidler & Berlin v. United States (1998) 524 U.S. 399, 403.) The purpose of the privilege is “intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” (Ibid., quoting Upjohn Co. v. United States (1981) 449 U.S. 383, 389.) The privilege is such an intrinsic part of the legal system that the U.S. Supreme Court has ruled that the privilege continues to apply even after the death of the client. (Id. at 410-11.) Despite the legal significance of the attorney-client privilege, it has limitations. Most importantly for the purposes of this bill, the privilege is considered waived if a third party is present to hear the communication between attorney and client. (Evid. Code, § 912, subd. (a); D.I. Charbourne, Inc. v. Super. Court of San Francisco (1964) 60 Cal. 2d 723, 735.)

Existing law provides inmates the right to communicate confidentially with a member of the California State Bar. Although Penal Code section 2601 specifically provides for confidential correspondence between an inmate and the inmate’s attorney, the statute makes no reference to phone calls. Per CDCR regulations, an attorney who wishes to make a confidential phone call to an inmate-client must request approval to do so. CDCR retains the authority to approve or deny confidential calls on a case-by-case basis.

According to the sponsor of this bill, there are certain CDCR facilities that categorically reject confidential phone calls, requiring attorneys to either use mail for correspondence, visit in-person, or speak on the phone while being monitored by CDCR staff. Prior to the COVID-19 crisis, these options were not always ideal for attorneys and their clients. First, the use slow pace and one-sided nature of communication by mail is likely to prove inadequate for proper legal representation. Second, due to the remote location of many CDCR facilities, traveling to a facility for an in-person visit may range from inconvenient to impossible, depending on the distance to be traveled, the number of clients the attorney has, and where each client is located. Finally, conducting a monitored phone call is likely to destroy the attorney-client privilege (Evid. Code, § 912, subd. (a); Charbourne, supra.), reducing the “broader public interests in the observance of law and the administration of justice” that the privilege is designed to protect. (Upjohn, supra.)

Although attorney visits have not been suspended during the pandemic, many attorneys are electing to utilize confidential calls in light of the recent COVID-19 outbreaks in the state’s prisons. Due to the pandemic, now may be a particularly appropriate time to consider expanding the use of confidential phone calls.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, unknown costs ranging from minor and absorbable to the hundreds of thousands of dollars, depending on if this bill prompts increased demand for confidential calls and if there currently exists sufficient infrastructure, resources, and personnel to meet the demand. (General Fund)

SUPPORT: (Verified 8/20/20)

Conference of California Bar Associations (source)

Alliance for Boys and Men of Color

Asian Americans Advancing Justice- California
California Innocence Project

California Public Defenders Association

Californians for Safety and Justice

Ella Baker Center for Human Rights

Initiate Justice

Loyola Project for the Innocent

National Association of Social Workers, California Chapter

National Lawyers Guild, San Francisco Bay Area Chapter

Northern California Innocence Project

Prison Law Office

Re:Store Justice

San Francisco Public Defender’s Office

Uncommon Law

Young Women’s Freedom Center

OPPOSITION: (Verified 8/20/20)

None received

ASSEMBLY FLOOR: 76-0, 6/8/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Megan Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Kiley, Lackey, Levine, Limón, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Low, Muratsuchi, Quirk

Prepared by: Stephanie Jordan / PUB. S. /

8/21/20 18:01:38

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 3043 (Jones-Sawyer) - Corrections: confidential calls

Bill Summary:

AB 3043 would require the Department of Corrections and Rehabilitation (CDCR) to approve an attorney’s request to make confidential calls with an incarcerated client, as specified.

Fiscal Impact:

Unknown costs ranging from minor and absorbable to the hundreds of thousands of dollars, depending on if this measure prompts increased demand for confidential calls and if there currently exists sufficient infrastructure, resources, and personnel to meet the demand. (General Fund)

Background:

According to the analysis of this bill by the Senate Committee on Public Safety:

The U.S. Constitution and the state Constitution guarantee the right to the assistance of an attorney for persons who are the subject of criminal prosecutions. The right to an attorney applies at the trial stage of a criminal proceeding and also during appeal. (See e.g., Anders v. California (1967) 386 U.S. 738, 741.) Communication with counsel is critical to the attorney-client relationship and necessary in order for the attorney to provide adequate representation. For these reasons, denying an inmate access to use the phone to call his or her attorney is unconstitutional in many circumstances. (See e.g. Tucker v. Randall (1991) 948 F.3d 388, 391.)

The privileged communication between attorney and client is one of the oldest recognized privileges for confidential communications. (See Swidler & Berlin v. United States (1998) 524 U.S. 399, 403.) The purpose of the privilege is “intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” (Ibid., quoting Upjohn Co. v. United States (1981) 449 U.S. 383, 389.) The privilege is such an intrinsic part of the legal system that the U.S. Supreme Court has ruled that the privilege continues to apply even after the death of the client. (Id. at 410-11.) Despite the legal significance of the attorney-client privilege, it has limitations. Most importantly for the purposes of this bill, the privilege is considered waived if a third party is present to hear the communication between attorney and client. (Evid. Code, § 912, subd. (a); D.I. Charbourne, Inc. v. Super. Court of San Francisco (1964) 60 Cal. 2d 723, 735.)

Existing law provides inmates the right to communicate confidentially with a member of the California State Bar. Although Penal Code section 2601 specifically provides for confidential correspondence between an inmate and the inmate’s attorney, the statute makes no reference to phone calls. Per CDCR regulations, an attorney who wishes to make a confidential phone call to an inmate-client must request approval to do so. CDCR retains the authority to approve or deny confidential calls on a case-by-case basis.

Specifically, CDCR regulations require requests must being in writing, on the attorney’s office letterhead, and delivered by the U.S. Postal Service or facsimile to an institution’s litigation coordinator or designee. In order to obtain approval, attorneys must furnish specific personal and professional information (e.g., name, date of birth, proof of status as a lawyer in good standing). Once the request is approved, the attorney is contacted to schedule the confidential telephone call with the specified inmate. Pursuant to department regulations, approval of a confidential call is within the discretion of the institution head, or their designee. As long as the attorney-client communication privilege is not violated, a confidential call may be denied where the institution head, or their designee, determines that normal legal mail or attorney visits are an appropriate means of communication and were not reasonably used by the client or attorney. Additionally, when demand for confidential calls seriously burdens institutional operations, the institution head, or their designee, is allowed to prioritize confidential calls. (Cal. Code Regs., tit. 15, § 3282.)

Proposed Law:

This bill would require CDCR to approve an attorney’s request to have a confidential call with an incarcerated person that they represent. The approved confidential call must be at least 30 minutes once per month, per incarcerated person, per case, unless the client or attorney requests less time.

Staff Comments:

Currently, CDCR does not bear the financial cost of confidential calls. Department regulation provides that a confidential call from an incarcerated person is to be placed as a collect call or by providing for the toll to be deducted from the incarcerated person’s trust account and made from a prison telephone or, with appropriate authentication of the caller, may be received from an attorney. AB 3043 would not would require CDCR to bear the financial expense for confidential calls. Accordingly, CDCR would expect a similar process to what exists now, with financial responsibility for the expense of such calls resting with the incarcerated individual.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 3043 Hearing Date: July 31, 2020

Subject: Corrections: Confidential Calls

HISTORY

Source: Conference of California Bar Associations

Prior Legislation: None

Support: Alliance for Boys and Men of Color; Asian Americans Advancing Justice- California; California Innocence Project; California Public Defenders Association; Californians for Safety and Justice; Ella Baker Center for Human Rights; Initiate Justice; Loyola Project for the Innocent; National Association of Social Workers, California Chapter; National Lawyers Guild, San Francisco Bay Area Chapter; Northern California Innocence Project; Prison Law Office; Re:Store Justice; San Francisco Public Defender’s Office; Uncommon Law; Young Women’s Freedom Center

Opposition: None known

Assembly Floor Vote: 76 - 0

PURPOSE

The purpose of this bill is to require the Department of Corrections and Rehabilitation (CDCR) to approve an inmate’s or attorney’s request to make confidential calls, as specified.

Existing law provides that in a defendant in a criminal case has the right to the assistance of counsel for the defendant’s defense. (Cal. Const., art. I, § 15.)

Existing law provides that communications made in the context of an attorney-client relationship are privileged, entitling the holder of the privilege to refuse to disclose, and to prevent another from disclosing, the communication. (Evid. Code, § 954.)

Existing law provides that the right of any person to claim the attorney-client privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. (Evid. Code, § 912, subd. (a).)

Existing law provides that a person sentenced to imprisonment in a state prison or to imprisonment in county jail for a felony offense may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)

Existing law provides that inmates have 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. (Pen. Code, § 2601, subd. (b).)

Existing law provides that the Director of CDCR may prescribe and amend rules and regulations for the administration of the prisons and requires the Director to maintain, publish, and make available to the general public, a compendium of such rules and regulations. (Pen. Code § 5058, subds. (a) and (b).)

Existing law provides that inmates may not use institution phones or payphones located on institution property except as specifically authorized by CDCR. (Cal. Code Regs., tit. 15, § 3018.)

Existing law defines a “confidential call” as a phone call between an inmate and the inmate’s attorney which both parties intend to be private. (Cal. Code Regs., tit. 15, § 3282, subd. (a)(2).)

Existing law provides that “confidential calls” may be approved on a case-by-case basis by the institution head or designee, upon written request from an attorney on the attorney’s office letterhead stationery. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(1).)

Existing law requires an attorney who wishes to conduct a confidential call with their client to make a written request in which the attorney provides in writing the following personal and professional information: name; mailing address; date of birth; valid driver’s license or state-issued identification card number; proof of current registry and good standing with a governing bar association; and, indication of the jurisdiction(s) licensed to practice law. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(1).)

Existing law requires requesting attorneys to report any prior felony convictions or pending arrest dispositions, describe and explain any prior suspension or exclusion from a correctional facility, and declare under penalty of perjury one or more of the following:

• They are the named inmate’s attorney either by appointment by the court or at the inmate’s request;
• They have been requested by a judge to interview a named inmate for purposes of possible appointment as counsel by the same court;
• They are requesting to call a named inmate who may be a witness directly relevant to a legal process, purpose, or proceeding;
• They are seeking to interview a named inmate, at the request of the inmate, for the purpose of representation of the inmate in a legal process, for a legal purpose or in a legal proceeding; and,
• They have been requested by a third party to consult with the named inmate when the inmate cannot do so because of a medical condition, disability or other circumstance. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(2).)
  

Existing law provides that any false statement or deliberate misrepresentation of facts specific to the information required above shall be grounds for denying the request or cause for subsequent suspension or exclusion from all institutions/facilities administered by the department. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(3).)

Existing law provides that the date, time, duration, and place where the inmate will make or receive the call, and manner of the call are within the discretion of the institution head, except as specified. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(5).)

Existing law provides that it is within the discretion of the institution head to approve or deny a confidential call and that as long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney. (Cal. Code Regs., tit. 15, § 3282, subd. (g)(6).)

Existing law requires that an attorney visit, defined as a private consultation between an inmate and the inmate’s attorney or attorney representative, be conducted in a confidential area specified by the institution/facility. Provides that attorney visiting shall normally be accommodated during the institution/facility regularly scheduled visiting days and hours. Delineates the process by which an attorney obtain approval to conduct attorney visits with inmate-clients. (Cal. Code Regs., tit. 15, § 3178, subd. (b).)

Existing federal law provides that in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense. (U.S. Const., 6th Amend.)

This bill requires CDCR to approve an inmate’s or attorney’s request, whoever the institution designates to make the request, to make a confidential call. Requires that the approved confidential call be at least 30 minutes once per month, per inmate, per case unless the inmate or attorney requests less time.

This bill defines confidential call as “a telephone call between an inmate and their attorney that both the inmate and attorney intend to be private.”

COMMENTS

1. Need for This Bill

According to the author:

Few, if any, state facilities provide confidential telecommunication between inmates and their legal representation. The same conversations are considered confidential when occurring in person. For equity and inmate safety, it is important that there are mechanisms in place to ensure confidential contact with one’s attorney.

1. Attorney Visits and Confidential Calls

The U.S. Constitution and the state Constitution guarantee the right to the assistance of an attorney for persons who are the subject of criminal prosecutions. The right to an attorney applies at the trial stage of a criminal proceeding and also during appeal. (See e.g., Anders v. California (1967) 386 U.S. 738, 741.) Communication with counsel is critical to the attorney-client relationship and necessary in order for the attorney to provide adequate representation. For these reasons, denying an inmate access to use the phone to call his or her attorney is unconstitutional in many circumstances. (See e.g. Tucker v. Randall (1991) 948 F.3d 388, 391.)

The privileged communication between attorney and client is one of the oldest recognized privileges for confidential communications. (See Swidler & Berlin v. United States (1998) 524 U.S. 399, 403.) The purpose of the privilege is “intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” (Ibid., quoting Upjohn Co. v. United States (1981) 449 U.S. 383, 389.) The privilege is such an intrinsic part of the legal system that the U.S. Supreme Court has ruled that the privilege continues to apply even after the death of the client. (Id. at 410-11.) Despite the legal significance of the attorney-client privilege, it has limitations. Most importantly for the purposes of this bill, the privilege is considered waived if a third party is present to hear the communication between attorney and client. (Evid. Code, § 912, subd. (a); D.I. Charbourne, Inc. v. Super. Court of San Francisco (1964) 60 Cal. 2d 723, 735.)

Existing law provides inmates the right to communicate confidentially with a member of the California State Bar. Although Penal Code section 2601 specifically provides for confidential correspondence between an inmate and the inmate’s attorney, the statute makes no reference to phone calls. Per CDCR regulations, an attorney who wishes to make a confidential phone call to an inmate-client must request approval to do so. CDCR retains the authority to approve or deny confidential calls on a case-by-case basis.

1. Effect of This Bill

According to the sponsor of this bill, there are certain CDCR facilities that categorically reject confidential phone calls, requiring attorneys to either use mail for correspondence, visit in-person, or speak on the phone while being monitored by CDCR staff. Prior to the COVID-19 crisis, these options were not always ideal for attorneys and their clients. First, the use slow pace and one-sided nature of communication by mail is likely to prove inadequate for proper legal representation. Second, due to the remote location of many CDCR facilities, traveling to a facility for an in-person visit may range from inconvenient to impossible, depending on the distance to be traveled, the number of clients the attorney has, and where each client is located. Finally, conducting a monitored phone call is likely to destroy the attorney-client privilege (Evid. Code, § 912, subd. (a); Charbourne, supra.), reducing the “broader public interests in the observance of law and the administration of justice” that the privilege is designed to protect. (Upjohn, supra.)

Although attorney visits have not been suspended during the pandemic, many attorneys are electing to utilize confidential calls in light of the recent COVID-19 outbreaks in the state’s prisons. Due to the pandemic, now may be a particularly appropriate time to consider expanding the use of confidential phone calls

-- END --

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 3043

Author:(Jones-Sawyer) – As Amended Ver:May 11, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the Department of Corrections and Rehabilitation (CDCR) to approve an inmate’s request to make a confidential call to their attorney if the attorney’s place of work is more than 75 miles from the institution, and requires CDCR to provide the inmate at least 30 minutes per month to make such calls.

FISCAL EFFECT:

Minor and absorbable costs to CDCR for staff to facilitate monthly confidential phone calls.

COMMENTS:

1. Purpose. According to the author:

While in-person communication is ideal, that cannot always be arranged. This bill will protect access to meaningful legal representation when attorneys are unable to appear in person. With all of the changes in operation of state facilities following the COVID-19 pandemic effective and protected communication with legal counsel is of the utmost importance.

1. Background. Existing law provides inmates the right to communicate confidentially with a member of the California State Bar, but does not necessarily apply to phone calls. CDCR regulations state if an inmate wants to make a confidential telephone call with an attorney, the inmate must apply for approval from CDCR. Once the application is completed and approved, CDCR retains the authority to approve or deny confidential calls on a case-by-case basis. Inmates at CDCR pay approximately $1.14 for a 15 minute phone call, or $2.28 for a 30 a minute phone call. This bill does not require CDCR to pay the cost of the phone call; only that CDCR provide the inmate time to make the call. Telephone communications between counsel and inmates has skyrocketed during the COVID-19 pandemic.
2. Arguments in Support. According to the California Public Defenders Association:

AB 3043 addresses this problem by simply requiring prisons to permit short calls between inmates and their attorneys, provided that the attorney works more than 75 miles from the prison in which the inmate is housed.

1. Related Legislation. SB 555 (Mitchell), of the 2019-2020 Legislative Session, prohibits county jails and juvenile facilities from collecting any profits from canteen sales and restricts a county’s ability to contract for communication or information services. SB 555 is pending in this committee.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 3043

Author:(Jones-Sawyer) – As Amended Ver:May 11, 2020

SUMMARY:

Requires the Department of Corrections and Rehabilitation (CDCR) to approve an inmate’s request to make a confidential call to their attorney if the attorney’s place of work is more than 75 miles from the institution, and requires CDCR to provide the inmate at least 30 minutes per month to make such calls.

EXSTING STATE LAW:

1. Provides that in a criminal case the defendant has the right to the assistance of counsel or the defendant’s defense. (Cal. Const. Art. I, Sec. 15.)
   
2. Provides, generally, that no person has a privilege to refuse to be a witness or to refuse to disclose any matter or to refuse to procedure any writing, object or other thing. (Evid. Code, § 911.)
   
3. Provides that communications made in the context of an attorney-client relationship are privileged, entitling the holder of the privilege to refuse to disclose, and to prevent another from disclosing, the communication. (Evid. Code, § 954.)
4. Provides that the right of any person to claim the attorney-client privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. (Evid. Code, § 912, subd. (a).)
   
5. Provides that a person sentenced to imprisonment in a state prison or to imprisonment in county jail for a felony offense may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code § 2600.)
   
6. Provides that prisoners have 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. (Pen. Code § 2601, subd. (b).)
   
7. Provides that the Director of CDCR may prescribe and amend rules and regulations for the administration of the prisons and requires the Director to maintain, publish and make available to the general public, a compendium of such rules and regulations. (Pen. Code § 5058, subds. (a) and (b).)
   
8. Provides that inmates may not use institution telephones or public coin operated telephones located on institution property except as specifically authorized by CDCR. (Cal. Code Regs. Tit. 15, § 3018.)
   
9. Defines a “confidential call” as a telephone call between an inmate and his/her attorney which both parties intend to be private. ((Cal. Code Regs. Tit. 15, § 3282, subd. (a)(2).)
   
10. Provides that “confidential calls” may be approved on a case-by-case basis by the institution head or designee, upon written request from an attorney on the attorney's office letterhead stationery. (Cal. Code Regs. Tit. 15, § 3282, subd. (g)(1).)
    
11. Requires an attorney who wishes to conduct a confidential call with their client to make a written request in which the attorney provides in writing the following personal and professional information:
    
    1. Name;
       
    2. Mailing address;
       
    3. Date of Birth;
       
    4. Valid driver's license or state-issued identification card number;
       
    5. Proof of current registry and good standing with a governing bar association; and,
       
    6. Indication of the jurisdiction(s) licensed to practice law. (Ibid.)
       
12. Requires requesting attorneys to report any prior felony convictions or pending arrest dispositions, describe and explain any prior suspension or exclusion from a correctional facility, and declare under penalty of perjury one or more of the following:
    
    1. They are the named inmate's attorney either by appointment by the court or at the inmate's request;
       
    2. They have been requested by a judge to interview a named inmate for purposes of possible appointment as counsel by the same court;
       
    3. They are requesting to call a named inmate who may be a witness directly relevant to a legal process, purpose, or proceeding;
       
    4. They are seeking to interview a named inmate, at the request of the inmate, for the purpose of representation of the inmate in a legal process, for a legal purpose or in a legal proceeding; and,
       
    5. They have been requested by a third party to consult with the named inmate when the inmate cannot do so because of a medical condition, disability or other circumstance. (Cal. Code Regs. Tit. 15, § 3282, subd. (g)(2).)
       
13. Provides that any false statement or deliberate misrepresentation of facts specific to the information required above shall be grounds for denying the request or cause for subsequent suspension or exclusion from all institutions/facilities administered by the department. (Cal. Code Regs. Tit. 15, § 3282, subd. (g)(3).)
    
14. Provides that the date, time, duration, and place where the inmate will make or receive the call, and manner of the call are within the discretion of the institution head, except as specified. (Cal. Code Regs. Tit. 15, § 3282, subd. (g)(3).)
    
15. Provides that it is within the discretion of the institution head to approve or deny a confidential call and that as long as the attorney/client communication privilege is not violated, a confidential call may be denied where the institution head determines that normal legal mail or attorney visits were appropriate means of communication and were not reasonably utilized by the inmate or attorney. (Cal. Code Regs. Tit. 15, § 3282, subd. (g)(6).)
    
16. Provides that attorney visits shall be conducted in a confidential area specified by the institution/facility and that attorney visiting shall normally be accommodated during the institution/facility regularly scheduled visiting days and hours. (Cal. Code Regs. Tit. 15, § 3178, subd. (b).)
    

EXSTING FEDERAL LAW: Provides that in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense. (U.S. Const. 6th Amend.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Access to confidential conversations with an attorney is critical to the health and safety of inmates. A private conversation with one’s counsel may be the only way those incarcerated are able to report instances of abuse or mistreatment. While in-person communication is ideal, that cannot always be arranged. This bill will protect access to meaningful legal representation when attorneys are unable to appear in person. With all of the changes in operation of state facilities following the COVID-19 pandemic effective and protected communication with legal counsel is of the utmost importance.”
   
2. Background: The United States Constitution and the California Constitution guarantee the right to the assistance of an attorney for persons who are the subject of criminal prosecutions. The right to an attorney applies at the trial stage of a criminal proceeding and also during appeal. (See e.g. Anders v. California (1967) 386 U.S. 738, 741.) Communication with counsel is critical to the attorney-client relationship and necessary in order to provide adequate representation. For these reasons, denying an inmate access to use the telephone to call his or her attorney is unconstitutional in many circumstances. (See e.g. Tucker v. Randall (1991) 948 F.3d 388, 391.)
   
   In general, a person who is subject to a legal proceeding must disclose any matter or produce any writing, object or other thing requested of the person. There are exceptions which include the constitutional right not to incriminate oneself (U.S. Const., 5th Amend.; Pen. Code, §§ 930, 940) and confidential communications between persons with certain professional relationships, such as communications made between a lawyer and his or her client. The privileged communication between attorney and client is one of the oldest recognized privileges for confidential communications. (See Swidler & Berlin v. United States (1998) 524 U.S. 399, 403.) The purpose of the privilege is “intended to encourage ‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” (Ibid., quoting Upjohn Co. v. United States (1981) 449 U.S. 383, 389.) The privilege is such an intrinsic part of the legal system that the United States Supreme Court has ruled that the privilege continues to apply even after the death of the client. (Id. at 410-11.) Despite the legal significance of the attorney-client privilege, it has limitations. Most importantly for the purposes of this bill, the privilege is considered waived if a third party is present to hear the communication between attorney and client. (Evid. Code, § 912, subd. (a); D.I. Charbourne, Inc. v. Super. Court of San Francisco (1964) 60 Cal. 2d 723, 735.)
   
   Existing law provides inmates the right to communicate confidentially with a member of the California State Bar. Penal Code Section 2601 specifically provides for such confidential communication. However, it appears that this statute is not also considered applicable to telephone calls. Per CDCR regulations, an inmate who wishes to conduct a confidential telephone call with an attorney must navigate the application process by which an attorney must be approved in order to conduct a confidential call with his or her client. Once that application is completed and approved, CDCR retains the authority to approve or deny confidential calls on a case-by-case basis. According to the proponent of this bill, there are certain facilities that categorically reject confidential telephone calls, requiring attorneys to either use mail for correspondence, visit in-person, or speak on the telephone while being monitored by CDCR staff. These options may not be ideal for attorneys and their clients. The use slow pace and on-sided nature of communication by mail is likely to prove inadequate for proper legal representation. Traveling to the facility for an in-person visit may range from inconvenient to impossible, depending on the distance to be traveled, the number of clients the attorney has, and where each one is located. Many CDCR facilities are located in remote parts of the State. (See CDCR Website Facility Locator Map: https://www.cdcr.ca.gov/facility-locator/). Finally, conducting a monitored telephone call is likely to destroy the attorney-client privilege (Evid. Code, § 912, subd. (a); Charbourne, supra.), thereby reducing the “broader public interests in the observance of law and the administration of justice” that the privilege is designed to protect. (Upjohn, supra.)
   
   Federal regulations appear to provide for more robust confidential communications between inmates and their attorneys than does the State of California. Federal regulations specifically provide that “Staff may not monitor an inmate's properly placed call to an attorney.” (United States Bureau of Prisons Program Statement, Telephone Regulations for Inmates, at p. 16, Feb. 4, 2002, available at: https://www.bop.gov/policy/progstat/5264_007.pdf [as of May 13, 2020].) Federal regulations further dictate that “The Warden may not apply frequency limitations on inmate telephone calls to attorneys when the inmate demonstrates that communication with attorneys by correspondence, visiting, or normal telephone use is not adequate.” (Id. at p. 17.)
   
   This bill would require CDCR to provide inmates with confidential calls with their attorneys if the attorney’ place of work is more than 75 miles away. The bill would also require that an inmate be given at least 30 minutes of confidential call time in those circumstances.
   
   
3. COVID-19 Concerns: COVID-19 poses a heightened danger to persons involved the criminal justice system as well as attorneys and staff. Jails and prisons make disease mitigation and prevention efforts virtually impossible when detention facilities are at or near capacity. Social distancing and sanitary practices are difficult in close quarters particularly when they lack a ready supply of personal protective equipment and rationed access to sanitary facilities. By their nature, detention facilities are generally designed in a manner to pack a large number of people into the smallest space possible to make them easy to secure and monitor. The spread of COVID-19 in jails and prisons poses a health risk to all Californians, starting first with the employees of jails and prisons, people who are incarcerated, their family members and others who visit them. The impacts reverberate through secondary institutions including law enforcement agencies and the judicial system.

COVID-19 has exacerbated the state’s already existing concerns with prison and jail overcrowding. In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that the California Department of Corrections and Rehabilitation (CDCR) was unable to provide inmates with constitutionally adequate healthcare. The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons.

Due to the COIVD-19 pandemic, now may be a particularly appropriate time to consider expanding the use of confidential telephone calls. Doing so may reduce the number of people going into and out of CDCR facilities since attorneys who are located more than 75 miles away from the facility can call in rather than visiting in person. Furthermore, prisoners who are not being provided adequate access to healthcare, or who are being isolated for extended periods of time in an attempt to control the spread of COVID-19 may not feel comfortable disclosing the details of their situation on a monitored call. This bill may provide such inmates with the ability to address instances of neglect or abuse.

1. Argument in Support: According to the California Public Defenders Association, “Under current law, state prison inmates have a constitutional right to communicate privately with their attorneys. However, because many inmates are not housed in their home county, they are frequently held in prisons located hundreds of miles from their attorney’s actual office, making in-person visitation difficult, if not impossible.

“Even if an attorney is able to travel to a prison far away from their place of business, the current system places a burden on both the attorney (who must spend an entire day travelling for a single thirty minute interview) and on prison staff (who must spend time screening the attorney before entry to the prison). The need to reform the existing limitations on the attorney-client communication process in state prison is particularly evident given the current pandemic, because in-person visitation places attorneys, inmates, and staff at risk of infection.

“AB 3043 addresses this problem by simply requiring prisons to permit short calls between inmates and their attorneys, provided that the attorney works more than 75 miles from the prison in which the inmate is housed.”

1. Argument in Opposition: According to >
   
2. Prior Legislation:
   
   1. SB 331 (Jackson) Chapter 178, Statutes of 2017, expanded the definition of a “domestic violence victim services organization” for purposes of the domestic violence victim-counselor evidentiary privilege.
      
   2. SB 2040 (Morgan), Chapter 854, Statutes of 1986, established the domestic violence victim-counselor privilege.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

Opposition

None

Analysis Prepared by:

Matthew Fleming / PUB. S. / (916) 319-3744