Date of Hearing: March 26, 2019

Counsel: Nikki Moore

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 675

Author:(Rodriguez) – As Amended Ver:March 20, 2019

SUMMARY:

Requires the California Department of Corrections and Rehabilitation (CDCR) to conduct ongoing security inspections of all state correctional institutions. Specifically, this bill:

1. Requires the CDCR under the supervision of the Office of the Inspector General (OIG) to conduct a security inspection and audit, as specified, of each facility that houses inmates at regular intervals, but at least every four years.
   
2. Requires CDCR provide notice to the OIG 30 days prior to the inspection and allows OIG staff to attend the site inspection.
   
3. Mandates that within 60 days after the conclusion of the inspection, CDCR shall prepare a summary of the inspection and audit, any findings, any deficiencies found, and a plan to address those deficiencies.
   
4. Requires the OIG to provide CDCR with recommendations on how to remediate security deficiencies identified in each inspection and audit. CDCR shall begin the remediation process within 60 days of the conclusion of the investigation, track and oversee the remediation, update the summary to reflect any remediation, and complete remediation of each deficiency identified within one year after the conclusion of the audit.
   
5. States that the OIG shall provide contemporaneous oversight of the security inspection and audit process including the recommendations on how to remediate security deficiencies, and requires OIG to prepare a report on CDCR’s process of performing security inspections and audits, including remediation of deficiencies.
   
6. Requires CDCR to provide the summary of the inspection to city and county law enforcement agencies located within a 10-mile radius of the prison facility and would require peace officers and other personnel of the receiving law enforcement agencies to keep the summary confidential.
   
7. Requires the CDCR to annually prepare a confidential report on deficiencies identified during the inspection and audit procedure and the remediation or planned remediation of those deficiencies for the Speaker and the President pro Tempore. The report would be available to Members of the Legislature, upon request.
   
8. Makes information about the location, nature, and details of identified security deficiencies confidential and exempt from public disclosure requirements.

EXISTING LAW:

1. States that escape or attempt to escape, by force or violence, while under the custody of prison officials, is punishable by imprisonment in the state prison for a term of two, four, or six years, to commence from the time the inmate would otherwise have been discharged from prison. (Pen. Code, § 4530 subd. (a).)
2. States that escape or attempt to escape, without force or violence, while under the custody of prison officials, is punishable by imprisonment in the state prison for 16 months, or two or three years, to be served consecutively. (Pen. Code, § 4530 subd. (b).)
   
3. Authorizes the Director of CDCR to prescribe and amend rules and regulations for the administration of the prisons. (Pen. Code, § 5058.)
   
4. Provides that the Director of CDCR shall require each state prison to develop a Mutual Aid Escape Pursuit Plan and Agreement with local law enforcement agencies, which shall be submitted for annual review to the city council of the city containing or nearest to the institution and to the county board of supervisors of the county containing the prison. (Pen. Code, § 5004.45.)
5. States that CDCR has full power to erect, alter, or improve any building or structure it deems necessary, paid from the fund appropriated for the use or support of the prisons, without advertising or contracting. (Pen. Code, § 2052.)
6. Vests the supervision, management, and control of the state prisons in the Secretary of CDCR. (Pen. Code, § 5054.)
   
7. Establishes the OIG and states that the OIG shall not be a subdivision of any other governmental entity. (Pen. Code, § 6125.)
8. Provides that the OIG is responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of CDCR. (Pen. Code, § 6126 subd. (a).)
   
9. Requires the OIG to annually report a summary of significant problems discovered by the office, and whether the recommendations the OIG made have been implemented, to the Legislature and Governor. (Pen. Code, § 6132.)
   
10. Provides that when a governmental agency discloses a public record that is otherwise exempt from disclosure under the California Public Records Act (CPRA), there is no waiver of that exemption if the agency provides information to another agency that agrees to treat the information as confidential. (Gov. Code, § 6254.5 subd. (e).)
    
11. Establishes that “official information” acquired in confidence by a public employee in the course of their duty has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and “disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.” (Evid. Code, §1040 subd. (b)(2).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Sound security of California’s correctional institutions is paramount to community safety and trust in the correctional system. In January last year, an inmate had successfully breached a fence at one of California’s oldest institutions, the Chino Institution for Men. This event led to a high speed car chase ending in Encinitas causing much fear, danger and anxiety throughout the communities affected. In addition, many resources were utilized by a number of police departments to recover the inmate and bring him back into custody. Upon further investigation the breached fence had a broken sensor that had been intermittently operational for 15 years. Greater oversight and enforcement of security audits and subsequent repairs will help ensure that our correctional institutions are secure and prevent other escapes from occurring.”
   
2. Escapes at California’s State Prisons: In January 2018, an inmate escaped from a California Institute for Men (CIM) in Chino, California. At around 9:15 p.m. the inmate was discovered missing from the facility during a routine inmate count. The inmate made it to Encinitas before he was apprehended the next evening by special agents from CDCR’s Office of Correctional Safety (OCS) Special Service Unit and Fugitive Apprehension Team. The inmate was taken back into custody at CIM, and his case was forwarded to the District Attorney’s Office for consideration of escape charges. (https://news.cdcr.ca.gov/news-releases/2018/01/16/inmate-who-escaped-from-california-institution-for-men-apprehended-in-encinitas/.)
   
   OCS is CDCR’s primary departmental link with allied law enforcement agencies and the Governor’s Office of Emergency Services. The OCS is comprised of six sub-units, one of which is the Special Services Unit (SSU), which conducts the criminal apprehension efforts of prison escapees and parolees wanted for serious and violent felonies. (https://www.cdcr.ca.gov/adult_operations/OCS.html.)
   
3. Security at CDCR Institutions: According to the California Code of Regulations, the primary objectives of correctional institutions are to protect the public by safely keeping persons committed to the custody of the CDCR, and to afford such persons opportunities to participate in rehabilitative activities. (Cal. Code Regs., tit. 15, § 3270.) Consistent efforts are made to insure the security of the institutions. (Id.) Staff, inmate and public safety take precedence over all other considerations in the operation of all the programs and activities of the institutions of the department. (Id.) Pertinent regulations aimed at ensuring institutional security include:

• Responsibility of Employees: Every employee, regardless of his or her assignment, is responsible for the safe custody of the inmates confined in the institutions of the department. It is the duty of every employee to do everything possible to prevent the escape of an inmate. Employees must not permit inmates or others to use hostages to escape from custody or otherwise interfere with orderly institutional operations. Hostages are not recognized for bargaining purposes. (Cal. Code Regs., tit. 15, §§ 3271, 3304, 3278, & 3295.)
• Escape Pursuit Plans: Each warden must have in effect at all times a plan of operations for the reporting of escapes, and for the pursuit and apprehension of escapees. Each employee must be instructed in procedures that they are to follow. Such plans must be in writing and be reviewed annually by the warden. (Cal. Code Regs., tit. 15, § 3296.)
• Lethal Electrified Fences: A lethal electrified fence is a high voltage fence installed for the lethal infliction of injury to escaping inmates. Precautions relating to lethal electrified fences require, but are not limited to, the posting of warning signs on the inner and outer perimeters of the facility informing staff, inmates, and the public of the presence of a lethal electrified fence; visual inspection of the lethal electrified fence area at least once per shift areas; regular inspections by an outside patrol of the perimeter areas; the presence of a staff person trained in energizing and deenergizing the fence prior to any authorized person entering the lethal electrified fence area; inspections of lethal electrified fences as specified by a routine maintenance schedule; and the insulation of lethal electrified fences between two security fences. (Cal. Code Regs., tit. 15, § 3270.1.)
• Inmate Count: Every institution head is required to maintain a system to account at all times for all inmates under their jurisdiction. A physical count of all inmates must be taken at least four times a day. No inmate activity is scheduled at a time which would disrupt a facility count. At least one daily count is a standing count, which requires inmates to stand at their cell door or sit on their assigned bed during the designated count time. If staff determines an inmate may be missing, an emergency count shall be conducted to determine whether an escape has occurred and, if so, the identity of the escapee. When an emergency count is announced, inmates are required to return to their assigned housing. (Cal. Code Regs., tit. 15, § 3274.)
  
• Inmate Movement: Inmate passes are issued to inmates approved for movement to scheduled non-routine appointments. If unscheduled movement of an inmate is necessary, such movement may not take place unless the inmate is escorted by staff, or an inmate pass has been issued by staff authorizing the movement. When visibility at a facility is severely restricted or a state of emergency is declared, inmates are confined to their housing units, except as otherwise authorized by the official in charge, and in such circumstances, all inmate movement occurs under direct and constant supervision of staff. Gate passes are maintained for each inmate assigned to work outside a facility’s security area. Gate passes include the inmate’s identification photo, name, CDC number, housing assignment, custody designation, assignment requiring the gate pass, effective date of the pass, times the inmate is authorized to pass through the gate, and the signature of a facility official authorized to approve gate passes. Inmates are prohibited from handling gate passes. A gate pass shall be rescinded if staff determines from the inmate’s behavior that the inmate may require increased supervision or if staff receives information indicating an inmate’s increased escape potential. (Cal. Code Regs., tit. 15, § 3274.)
• Unauthorized Persons: Persons are not permitted to be on institution grounds or in community correctional centers without a legitimate purpose for being there and are not allowed to contact inmates without authorization to do so. (Cal. Code Regs., tit. 15,§ 3283.)
• Safety and Security: Institution heads are required to maintain procedures for controlling safety and security hazards within facilities, including fire prevention and suppression, control of harmful physical agents and toxic or hazardous substances, control of tools, armory and armaments, including firearms, ammunition, chemical agents, and explosives under the institution’s control, and control of keys and security locking devices. (Cal. Code Regs., tit. 15,§ 3303.)

In general, these regulations guide CDCR staff to keep track of and control inmates, which is crucial to prevent an escape. Markedly, the regulations do not address CDCR infrastructure, other than the lethal electrified fences. This bill would require CDCR to periodically conduct security inspections and audits at all of the state’s correctional institutions. These inspections shall include, but are not limited to, physical examinations of the facilities, interviews with staff, audits of records, policies, and procedures, and observation of facility operations.

1. Security Audits: The American Correctional Association provides accreditation to correctional facilities comply with national standards it promulgates. Accreditation is intended to improve correctional facility operations through adherence to clear standards relevant to all areas/operations of the facility, including safety, security, order, inmate care, programs, justice, and administration. The American Correctional Association facilitates the accreditation process through a series of reviews, evaluations, audits and hearings. All of CDCR’s adult correctional facilities are accredited. (http://www.aca.org/ACA_Prod_IMIS/ACA_Member/Standards_and_Accreditation/SAC_AccFacHome.aspx?WebsiteKey=139f6b09-e150-4c56-9c66-284b92f21e51&hkey=f53cf206-2285-490e-98b7-66b5ecf4927a&CCO=2#CCO.)
   
   In 2017, CDCR began conducting internal Security Audits through the Office of Audits and Court Compliance (OACC). These Security Audits are intended to replace the previous security reviews provided under the American Correctional Association and will identify weaknesses, deficiencies, and areas of vulnerability that create risks to the safety and security of the institutions, including identifying any safeguards and control systems that are no longer operable, appropriate, or adequate. The Security Audit tool contains 15 components that were developed using the California Code of Regulations, Title 15; the Department Operations Manual; and various policy memoranda as the primary sources of operational standards. (https://www.cdcr.ca.gov/FPCM/docs/2017-Master-Plan-Annual-Report.pdf.)
   
   The first audit occurred at CMF on July 30, 2017. It is anticipated that each institution will complete one round of Security Audits by October 2019. (https://www.cdcr.ca.gov/FPCM/docs/2017-Master-Plan-Annual-Report.pdf)
2. The Office of the Inspector General: The OIG is tasked with conducting ongoing system monitoring, and select reviews of policies, practices, and procedures of CDCR when requested by the Governor, the Senate Committee on Rules, or the Assembly. The OIG is also responsible for contemporaneous oversight of the internal affairs investigations and the disciplinary process of CDCR, for conducting reviews of the delivery of medical care at each State institution, and for determining the qualifications of candidates submitted by the Governor for the position of warden. (https://www.oig.ca.gov)
   
   In addition to these responsibilities, this bill would require the OIG to track and oversee the security inspections, audits, and remediation of security deficiencies at all CDCR institutions.
   
   This bill would also require CDCR to develop recommendations for corrective action to address deficiencies identified by its audits and inspections, and requires CDCR to prioritize the corrective action. This bill would require the OIG to review and reprioritize these corrective actions, if needed. By March 1, 2021, and every year thereafter, CDCR must submit a report to the Legislature detailing the security deficiencies found in the previous year, its recommendation’s to remediate security deficiencies identified in the OIG report, and an estimate of the time required to implement the remedial measures and an update on remedial plans submitted in previous years.
3. Confidentiality Considerations: This bill provides that information about a security deficiency shall be confidential, and recognizes that a law enforcement agency may share the information with another agency and the Legislature without waiving any exemption from disclosure.
   
   The Legislature may want to consider whether, at some point, the information regarding the remediation of security concerns should be made public. Public resources and funds will be used to investigate, audit and remediate any security deficiencies identified as a result of this proposed bill. While information about the security deficiencies in a facility should be kept secret while the security concerns exist, the same interest in confidentiality does not exist after the deficiencies are remediated. Additionally, this bill would only permit a Member of the Legislature to access and view a report detailing security deficiencies, meaning that a staff member for the Legislature may not access or review the report. In practice, this may present a barrier to a legislator’s office from having meaningful access to the report.
4. Need for the Bill: As described in CDCR’s 2017 Master Plan Annual Report, CDCR has a significant workload of capital outlay and special repair/deferred maintenance projects, driven by safety and security requirements, infrastructure systems that have been strained by capacity demands, the general age of many facilities, and inadequate maintenance funding. (https://www.cdcr.ca.gov/FPCM/docs/2017-Master-Plan-Annual-Report.pdf.) “The impact of public safety realignment through Assembly Bill 109 (AB) (Ch. 15, Stats. Of 2011) and several voter-approved initiative measures have provided relief as the number of inmates housed in CDCR has been reduced; however, the failing infrastructure systems throughout the CDCR portfolio continue to require major repairs and/or replacement regardless of the number of inmates housed in the facility.” (Id.) In its “Future of California Corrections” report, CDCR claims that “the vast majority of [its] facilities are over 30 years old and require major repairs and capital replacements to continue to operate effectively.” (https://www.cdcr.ca.gov/Blueprint-Update-2016/An-Update-to-the-Future-of-California-Corrections-January-2016.pdf.)
   
   The Governor’s 2019-20 budget proposes $71.7 million in one-time General Fund spending for infrastructure and equipment at CDCR specifically for prison roof replacement projects at High Desert State Prison and California State Prison, Solano, as part of a broad, multiyear plan to replace aging and deteriorating roofs across the state prison system. To date, eight institutions have received one-time funding for roof replacement and repair projects. With funding for these two prisons, 18 remaining institutions are scheduled for future roof replacement and repair projects over the next seven years.
   
   Governor Brown vetoed a prior version of this bill, stating, “The Office of Audits and Court Compliance is tasked with conducting security audits, which began in July 2017. The Department anticipates that all 35 of its institutions will have undergone the first round of security audits by October 27, 2019, and will continue to be audited regularly thereafter. Given that these audits are ongoing, I see no reason to create a duplicative legislative mandate. If the Legislature desires additional information or updates on this process, direct briefings, as well as updates through the annual budget process are the appropriate venue.”
   
5. Argument in Support: According to the California Correctional Peace Officers Association, “Maintaining safe and secure facilities is paramount to creating the most efficient and rehabilitative correctional system possible in our state. We need to have regular evaluations of California’s prison facilities to ensure the safety of the men and women who work behind the walls as well as the individuals who are housed there. This bill would allow the state’s correctional facilities to be evaluated on a regular basis and make certain that all of the necessary deficiencies are appropriately addressed.”
   
6. Prior Legislation: AB 2028 (Rodriguez) of the 2017-2018 Legislative Session would have required the CDCR to conduct ongoing security inspections of all state correctional institutions. AB 2028 was vetoed by the Governor.
   

REGISTERED SUPPORT / OPPOSITION:

Support

California Correctional Peace Officers Association

Opposition

None

Analysis Prepared by:

Nikki Moore / PUB. S. / (916) 319-3744