Existing law provides that an inmate in state prison has specified civil rights, including, among others, the right to confidentially correspond with a member of the State Bar of California. Existing law requires the Department of Corrections and Rehabilitation to approve an attorneys request to have a confidential call, as defined, with the inmate that they represent. Existing law requires the phone call to be at least 30 minutes once per month, per inmate, per case, unless the inmate or attorney requests less time.

This bill would require local jail facilities to adopt the above-described confidential call process for inmates incarcerated persons and attorneys. The bill would specify that these provisions neither supplant nor limit an incarcerated persons existing access to their attorney. By increasing the duties on local officials, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law provides that an inmate in state prison has specified civil rights, including, among others, the right to confidentially correspond with a member of the State Bar of California. Existing law requires the Department of Corrections and Rehabilitation to approve an attorneys request to have a confidential call, as defined, with the inmate that they represent. Existing law requires the phone call to be at least 30 minutes once per month, per inmate, per case, unless the inmate or attorney requests less time.

This bill would require local jail facilities to adopt the above-described confidential call process for inmates and attorneys. By increasing the duties on local officials, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: March 20, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2280

Author:(Jones-Sawyer) – As Amended Ver:March 13, 2024

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

SUMMARY:

This bill requires a jail facility to approve, upon an attorney’s request, one confidential call per month, per case, between the attorney and the incarcerated person they represent, where each approved call may last up to 30 minutes.

FISCAL EFFECT:

Costs (General Fund/Proposition 30) to the counties, possibly in the high hundreds of thousands to millions of dollars annually. County jails may require additional staffing to process and respond to requests for confidential calls and to transport incarcerated people for approved phone calls. According to the Public Policy Institute of California, the county jail population was approximately 54,500 in June 2023. If, for example, 15% of those people are represented by an attorney and request monthly confidential calls for six months for one case each, that would result in 49,050 30-minute confidential calls that jails must facilitate within a 6-month period. If ten counties must each hire one new deputy or one civilian employee to handle the resulting workload, at an average cost of $75,000 annually, the statewide cost would be $750,000 per year. Because this bill may significantly increase the number of confidential phone calls that must be accommodated in jails, the counties may also incur one-time costs of an unknown amount for infrastructure improvements.

General Fund costs will depend on whether the Commission on State Mandates determines this bill imposes local reimbursable costs. These county costs may be reimbursable due to Proposition 30, which provides that any legislation enacted after September 30, 2012 that has an overall effect of increasing costs already borne by a local agency for programs or levels of service mandated by realignment applies to local agencies only to the extent the state provides annual funding for the cost increase. Proposition 30 has not been litigated and it is unclear what constitutes a reimbursable state-mandated local program pursuant to Proposition 30.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. According to the author:

At the height of the COVID-19 pandemic, the Legislature passed AB 3043 (Jones-Sawyer, 2020) to protect the right of incarcerated people housed in state prisons administered by the California Department of Corrections and Rehabilitation to communicate confidentially with their attorney. In order to protect access to meaningful legal representation, these same protections for privileged communications with counsel must be extended to incarcerated persons housed in local facilities.

1. Background. California law provides an incarcerated person with the right to communicate confidentially with their attorney. In 2020, during the COVID-19 pandemic, the Legislature passed AB 3043 (Jones-Sawyer), Chapter 333, Statutes of 2020, which requires the California Department of Corrections and Rehabilitation to approve an attorney’s request for one confidential, 30-minute call with their incarcerated client per case, per month. The goal of that bill was to help ensure that a person incarcerated in a state prison had meaningful access to legal representation even when they could not meet face-to-face with their attorney due to the pandemic.

This bill makes the same requirements applicable to county jails. Upon request, a jail must provide an incarcerated person with one confidential, 30-minute phone call with their attorney per case, per month. If an incarcerated person has more than one active case – for example, two separate ongoing prosecutions or one prosecution and a civil matter – this bill entitles them to a confidential 30-minute call for each case each month. Due to the size of the jail population, facilitating these calls may significantly increase workload to the county jails. Staff will likely need to process requests for calls, determine which requests must be granted (which may require detailed tracking of ongoing cases), and communicate with requesting attorneys. Jail staff will also need to facilitate movement of incarcerated people to secure locations where they can conduct approved confidential calls. As noted above, jails may also incur costs in changing their facilities to accommodate the volume of confidential calls authorized by this bill.

As noted in the analysis of this bill by the Assembly Committee on Public Safety, the county jail population, unlike the state prison population, contains a significant number of people who are detained before trial. Pre-trial detainees are more likely to be represented by attorneys who work in close proximity to the county jail and can attend confidential attorney-client meetings in person. Given this and other differences between the jail and prison populations, the author may wish to consider ways to more specifically tailor this bill to the county jails.

1. Support and Opposition. In support, the California Public Defenders Association writes:

Though many Public Defender’s Offices throughout the state have a variety of ways to have confidential communications with a client while they are in custody, others, such as appellate attorneys, parole attorneys, and civil attorneys can find it very difficult to arrange for confidential communication with their in-custody clients. AB 2280 is intended to address this problem…CPDA is supportive of all legislative efforts to facilitate and enhance confidential communication between incarcerated individuals and their attorneys.

In opposition, the California State Sheriffs’ Association writes:

Existing law and procedures already allow for robust communication between an inmate and their attorney…Mandating an additional call for every inmate once per month will represent a significant drain on resources especially in jails that do not have the infrastructure capable of supporting such a substantial increase in required phone call availability…In most cases, jail inmates’ attorneys are likely to be located in closer proximity than attorneys are to prison inmates given the location of prisons throughout the state and the fact that prison housing assignments are not always close to the county of conviction. This proximity reduces the need for additional phone conversations that could be handled in person.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing:

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 2280

Author:(Jones-Sawyer) – As Introduced Ver:February 8, 2024

As Proposed to be Amended in Committee

SUMMARY:

Requires jail facilities to approve an attorney’s request to make confidential calls with an incarcerated client, as specified. Specifically, this bill:

1. Requires jail facilities to approve an attorney's request to make a confidential call to their client.
   
2. Requires such calls to be at least 30 minutes in duration once per month, per incarcerated person, per case, unless the attorney or the person requests less time.
   
3. Defines “confidential call” as “a telephone call between an inmate and their attorney that both the inmate and attorney intend to be private.”
   
4. Provides that these provisions do not supplant existing access between an incarcerated person and their attorney as of January 1, 2024, and shall not be construed as to infringe on the incarcerated person’s right to freely and confidentially correspond with their attorney in other manners.
   
5. Requires jail facilities to take all reasonable means to facilitate an incarcerated person’s access to counsel to the greatest extent possible.

EXISTING STATE LAW:

1. Entitles a criminal defendant the right to the assistance of counsel. (U.S. Const. 6th Amend., & Cal. Const. Art. I, Sec. 15.)
   
2. 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.)
3. Provides that incarcerated persons have the right to correspond confidentially with any member of the State Bar or holder of public office, provided that prison authorities may open and inspect incoming mail to search for contraband. (Pen. Code § 2601, subd. (b).)
4. Requires the California Department of Corrections and Rehabilitation (CDCR) to approve an attorney’s request to make confidential calls with their incarcerated client, and requires CDCR to provide the incarcerared person at least 30 minutes per month to make such calls, unless either the attorney or the person requests less time. (Pen. Code, § 5058.7, subd. (a).)
5. Defines “confidential call” as “a telephone call between an inmate and their attorney that both the inmate and attorney intend to be private.” (Pen. Code, § 5058.7, 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, “At the height of the COVID-19 pandemic, the Legislature passed AB 3043 (Jones-Sawyer, 2020) to protect the right of incarcerated people housed in state prisons administered by the California Department of Corrections and Rehabilitation to communicate confidentially with their attorney. In order to protect access to meaningful legal representation, these same protections for privileged communications with counsel must be extended to incarcerated persons housed in local facilities. AB 2280 does so by requiring local jails to allow for at least one 30-minute phone conversation between an incarcerated person and their attorney per month upon request.”
   
2. Right to Counsel: “The right to effective assistance of counsel includes the right to confer in absolute privacy. [Citation.] California's constitutional protection of the right to counsel has been recognized as the source of a prisoner's right to consult privately with counsel in preparation for trial since at least 1920. [Citation.] The right to counsel under both state and federal Constitutions guarantees a person accused of a crime not just the opportunity to hear his lawyer's advice but also to privately confide facts that may incriminate or embarrass him. [Citation.] When others can overhear attorney-client communications, there is an impermissible chilling effect on the constitutional right to counsel. [Citation.]” (County of Nevada v. Superior Court (2015) 236 Cal.App.4th 1001, 1007.)
   
   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. The attorney-inmate confidentiality guarantee applies if the attorney makes a reasonable showing to prison authorities that he is duly authorized to practice law in his state; that an attorney-client relationship exists; and that this relationship concerns a pending criminal matter, or the conditions of his client’s confinement, including any related application for extraordinary relief. (In re Jordan (1974) 12 Cal.3d 575, 581.)
   
   During the COVID-19 pandemic, the Legislature passed and the Governor signed AB 3043 (Jones-Sawyer), Chapter 333, Statutes of 2020, requiring CDCR to allow attorneys to request at least one 30-minute confidential phone call per month, per case, with their client. According to the Assembly Committee’s analysis of AB 3043, the author and proponents of the bill expressed that the bill was needed to protect access to meaningful legal representation when attorneys are unable to appear in person. (See Assembly Public Safety Committee, Analysis of AB 1035 (2019-2020 Reg. Sess.) as amended May 11, 2020, pp. 3 & 5.)
   
   This bill places the same requirements on county jails, and would entitle attorneys to request at least one 30-minute confidential phone call with their client. While the concerns surrounding COVID-19 are no longer as necessary, allowing flexibility in communications between an attorney and their client furthers the right to effective assistance of counsel.
   
   More importantly, it should be noted that after the enactment of Criminal Justice realignment in 2011, jails are no longer reserved for pre-trial detainees who are most likely being represented by an attorney in their county. Realignment created two classifications of felonies: those punishable in county jail and those punishable in state prison. Realignment also limited which felons can be sent to state prison, thus requiring that more persons serve their sentences in county jails.
   
   The right to counsel in California also encompasses the right to counsel on appeal. (Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1006.) Every individual convicted of a crime in the state of California has a statutory right to appeal the judgment of conviction. (See Pen. Code, §§ 1237 [generally], 1237.5 [guilty pleas], 1466, subd. (b) [misdemeanors]; see also Welf & Inst. Code, §800 [delinquency proceedings].) Although the federal constitution does not entitle defendants a right to appeal, when a state grants the right to appeal, the procedures it adopts to implement the right must satisfy due process clause and equal protection guaranteed by the United States Constitution. (Evitts v Lucey (1985) 469 U.S. 387, 393.) The procedures must include minimum safeguards necessary to make the appeal “adequate and effective.” (Halbert v Michigan (2005) 545 US 605, 610.)
   
   “The Court-Appointed Counsel (CAC) program fulfills the constitutional mandate of providing adequate representation for indigent appellants in the Courts of Appeal on noncapital cases. The Judicial Council of California staff works with nonprofit organizations ("projects") that recommend to the Courts of Appeal the appointment of private attorneys to represent indigent appellants.” (https://www.courts.ca.gov/4201.htm.)
   
   Just as is the case with appellants sentenced to state prison, court appointed appellate counsel may not necessarily reside in the same county where the appellant is incarcerated in county jail. Accordingly, it makes sense to provide the same access to confidential communications with counsel via phone regardless of the type of correctional facility where the appellant is housed.
   
   And yet, as noted above, a significant part of the jail population are pre-trial detainees who are likely to be represented by the county public defender, an alternate defenders office, or local retained counsel. Given that proximity and travel time may not be significant, many pretrial detainees will be interviewed by their attorney, or consult with their attorney in person. The proposed committee amendments specify that the guaranteed phone access proposed by this bill should not supplant existing access between an incarcerated person and their attorney by other means, including in person visits.
   
3. Argument in Support: According to Oakland Privacy, “AB 2280 affirms long-established state law that provides for monthly 30-minute long confidential calls with counsel for inmates at state correctional facilities and extends it to local jail facilities. When state prison crowding in California hit its apex in 2011 and the U.S. Supreme Court in Brown v. Plata ordered the release of 30,000 inmates from overcrowded state facilities, California embarked on the process of realignment (AB 109) which was a policy to shift many inmates into local custody at county jails. Under realignment, inmates were kept in county jails for longer and longer periods, including in some cases multi-year sentences, along and beside the large pre-trial population.
   
   “While realignment was accompanied by a shift in financial resources to help county jails handle the influx, it isn’t controversial to say that, 10+ years later, many county jail procedures and processes have not fully adjusted to the changes. The Public Policy Institute reported in January of 2024 that the California county jail population hold a significantly increased number (and percentage of) inmates with mental health problems (from 20% a decade ago to 37% presently), that some 90% of county jail inmates are being held for a felony charge or crime, and that 76% are awaiting arraignment, trial or sentencing.
   
   “Given this description, it seems clear that the majority of the county jail population is facing serious charges, is still in a court process navigating those charges, and is in need of attorney support, whether from a public defender or a private attorney. It is in the interests of justice and due process for inmates to receive what legal support they can get regardless of the facility where they are housed.
   

“It is also in the interests of the state for the court system to move as effectively as it can, which is likely aided by regular contact between defense attorneys and their clients to avoid delays caused by counsel lack of case knowledge.

“Moreover, AB 2280 by mandating regular confidential telephone calls at scale in county jails would likely prevent violations of attorney-client privilege, which have been documented in Orange County in 2018, and likely occurred at other county jails due to the lack of a scaled system to handle such calls on an ongoing basis.

“AB 2280 simply extends to inmates in county jails the same standards for regular privileged communications with counsel as have been uncontroversially reserved for inmates in state prisons. There is no sound reason why the standards should differ based on who operates the facility. In the post-realignment era, county jail fulfills many of the functions formerly shouldered by the state correctional system, and our civil rights laws should catch up.”

1. Argument in Opposition: According to the California State Sheriffs’ Association, “Existing law and procedures already allow for robust communication between an inmate and their attorney. There are already systems in place to allow inmates to have access to phone calls and visitation as well as other correspondence that can be used to communicate with counsel. Mandating an additional call for every inmate once per month will represent a significant drain on resources especially in jails that do not have the infrastructure capable of supporting such a substantial increase in required phone call availability. Physical visitation also affords jail officials a better opportunity to vet and approve attorneys’ interactions with inmates; a process made more difficult by directing more communication to guaranteed monthly calls where it is harder to guarantee the identity of the other party to the call.
   
   “Further, the existence of a similar statute for prison inmates does not support the creation of an analogous allowance for jail inmates. In most cases, jail inmates’ attorneys are likely to be located in closer proximity than attorneys are to prison inmates given the location of prisons throughout the state and the fact that prison housing assignments are not always close to the county of conviction. This proximity reduces the need for additional phone conversations that could be handled in person.”
   
2. Prior Legislation:
   
   1. SB 1008 (Becker), Chapter 827, Statutes of 2022, requires state adult and youth correctional facilities and local youth detention centers to provide voice communication services to incarcerated persons free of charge.
      
   2. AB 2023 (Bennett), Chapter 327, Statutes of 2022, entitles a person incarcerated in, or recently released from, a county jail to have access to up to three free telephone calls in the county jail to plan for a safe and successful release.
      
   3. SB 1139 (Kamlager), Chapter 837, Statutes of 2022, requires CDCR to make emergency phone calls available to an incarcerated person and specified people outside of CDCR when the incarcerated person has been hospitalized for a serious medical reason.
      
   4. AB 3043 (Jones-Sawyer), Chapter 333, Statutes of 2020, requires 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.

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

Oakland Privacy

The Transformative In-prison Workgroup

Opposition

California State Sheriffs’ Association

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744