Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would give the Office of the Inspector General investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person and would authorize the Office of the Inspector General to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person, as provided. The bill would require the Office of the Inspector General to, upon the completion of an investigation, compile and submit a report to the appropriate hiring authority, as specified.

Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would give the Office of the Inspector General investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person and would authorize the Office of the Inspector General to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person, as provided. The bill would require the Office of the Inspector General to, upon the completion of an investigation, compile and submit a report to the appropriate hiring authority, as specified.

Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would give the Office of the Inspector General investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person. The bill person and would authorize the Office of the Inspector General to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person. person, as provided. The bill would require the Office of the Inspector General to, upon the completion of an investigation, compile and submit a report to the appropriate hiring authority, as specified.

Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would require give the Office of the Inspector General to monitor and have investigatory authority over all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person. The bill would give the Office of the Inspector General joint decisionmaking authority, along with the wardens of the various state prisons, regarding the determination of whether a misconduct case or claim is substantiated and how a prison shall respond to a substantiated claim. The bill would allow the Attorney General to investigate a sexual misconduct case or claim if the office and a warden do not agree on whether a sexual misconduct case or claim is substantiated, as provided. The bill would authorize the Office of the Inspector General to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would require the Office of the Inspector General to monitor and have investigatory authority over all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person. The bill would give the Office of the Inspector General joint decisionmaking authority, along with the wardens of the various state prisons, regarding the determination of whether a misconduct case or claim is substantiated and how a prison shall respond to a substantiated claim. The bill would allow the Attorney General to investigate a sexual misconduct case or claim if the office and a warden do not agree on whether a sexual misconduct case or claim is substantiated, as provided.

Existing law establishes the Office of the Inspector General that is responsible for, among other things, contemporaneous public oversight of internal affairs investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitations Office of Internal Affairs. Existing law requires the Office of the Inspector General to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of the department allegations of internal misconduct and use of force and, no less than semiannually, summarizing its oversight of Office of Internal Affairs investigations. Existing law requires these reports to be posted on the Inspector Generals internet website and otherwise made available to the public upon release to the Governor and Legislature.

This bill would require the Office of the Inspector General to monitor all staff misconduct cases that involve sexual misconduct with an incarcerated person.

 UNFINISHED BUSINESS  

Bill No: SB 1069

Author: Menjivar (D)

Amended: 8/19/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/2/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SENATE FLOOR: 38-0, 5/24/24

AYES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Allen, Archuleta

ASSEMBLY FLOOR: 65-0, 8/28/24 - Roll call not available

SUBJECT: State prisons: Office of the Inspector General

SOURCE: California Coalition for Women Prisoners

Sister Warriors Freedom Coalition; ValorUS

DIGEST:

1. This bill provides that the Office of the Inspector General (OIG) has investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person, and authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

Assembly Amendments

limit the OIG’s authority to perform a full investigation into a sexual misconduct complaint when the Department of Corrections and Rehabilitation (CDCR) has opened an investigation; allow the OIG to perform supplemental investigative measures if it deems CDCR’s investigation to be inadequate; prohibit the OIG from exercising its investigative authority in a manner that duplicates investigative efforts or interferes with an ongoing CDCR investigation; and require the OIG to provide a copy of the investigation report and all underlying evidence to the appropriate hiring authority within CDCR.

ANALYSIS:

Existing law:

1. Establishes the independent OIG. (Pen. Code, § 6125.)
2. Provides that the Inspector General (IG) is responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of CDCR under policies to be developed by the IG. (Pen. Code, § 6126, subd. (a).)
3. Authorizes the IG to initiate an audit or review of policies, practices, and procedures of CDCR when requested by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly. Requires the IG to, during the course of an audit or review, identify areas of full and partial compliance, or noncompliance, with departmental policies and procedures, specify deficiencies in the completion and documentation of processes, and recommend corrective actions, including, but not limited to, additional training, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate. Requires the IG to prepare a written public report upon completion of an audit or review. (Pen. Code, § 6126, subds. (b)-(d).)
4. Requires the IG to provide contemporaneous oversight of grievances that fall within the department’s process for reviewing and investigating inmate allegations of staff misconduct and other specialty grievances, examining compliance with regulations, department policy, and best practices. Specifies that the contemporaneous oversight be completed in a way that does not unnecessarily slow the department’s review and investigation of inmate allegations of staff misconduct and other specialty grievances. Requires the IG to issue reports annually, beginning in 2021. (Pen. Code, § 6126, subd. (i).)
5. Requires the IG to monitor the department’s process for reviewing uses of force and to issue reports annually. (Pen. Code, § 6126, subd. (j).)
6. Requires the OIG to be responsible for contemporaneous public oversight of CDCR investigations and staff grievance inquiries conducted by the department’s Office of Internal Affairs (OIA). Provides that the OIG have staff physically co-located with CDCR’s OIA to facilitate oversight of the department’s internal affairs investigations. Requires the OIG to be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. Provides that the OIG has discretion to provide public oversight of other CDCR personnel investigations as needed. (Pen. Code, § 6133, subd. (a).)
7. Requires the OIG to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force. (Pen. Code, § 6133, subd. (b)(1).)
8. Requires the OIG to also issue regular reports, no less than semiannually, summarizing its oversight of OIA investigations. Requires the report to include, but not be limited to, all of the following:
9. Data on the number, type, and disposition of complaints made against correctional officers and staff.
10. A synopsis of each matter reviewed by the OIG.
11. An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the OIG’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the OIG recommendations regarding disposition and level of discipline.
12. The report of any settlement and whether the OIG concurred with the settlement.
13. The extent to which any discipline was modified after imposition. (Pen. Code, § 6133, subd. (b)(1).)
14. Requires the reports to be in a form that does not identify the agency employees involved in the alleged misconduct. Requires the reports be posted on the IG’s website and otherwise made available to the public upon their release to the Governor and the Legislature. (Pen. Code, § 6133, subds. (b)(2), (b)(3).)

This bill:

1. Provides that the OIG has investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person.
2. Authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

Background

OIG Oversight Authority. The OIG is an independent office that provides oversight of CDCR’s internal affairs investigations and the disciplinary process as well as oversight of grievances that fall within CDCR’s process for reviewing and investigating allegations of staff misconduct. Current law requires the OIG to determine the adequacy of each investigation and whether discipline of the subject of the investigation is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations. All reports are required to be posted on the IG’s website and otherwise made publicly available.

Ongoing Concerns Regarding Sexual Abuse of Incarcerated Individuals. California’s prisons—and the women’s prisons in particular—have been plagued with allegations of staff sexual assault and sexual misconduct for years. (See Richard Winton, ‘Every woman’s worst nightmare’: Lawsuit alleges widespread sexual abuse at California prisons for women (Jan. 18, 2024) available at <https://www.latimes.com/california/story/2024-01-18/every-womans-worst-nightmare-lawsuit-alleges-widespread-sexual-abuse-at-californias-womens-prisons.) Earlier this year, 130 individuals formerly incarcerated at the California Institution for Women (CIW) and Central California Women’s Facility (CCWF) filed a lawsuit against CDCR and 30 current and former correctional officers alleging that they were sexually abused while in prison. (Id.) The lawsuit alleges that the sexual abuse occurred throughout the prisons, including in cells, closets, and storage rooms, and alleges a variety of sexual abuse, including groping, forced oral copulation, and rape. (Id.) In 2023, a former correctional officer at CCWF was arrested for sexually assaulting 13 incarcerated individuals over nine years and was charged with 96 counts of rape, sodomy, sexual battery, and rape under color of authority. (Jeremy Childs, Ex-corrections officer accused of raping 13 inmates in California women’s prison (May 25, 2023) available at <https://www.latimes.com/california/story/2023-05-25/ex-corrections-officer-accused-of-raping-inmates-at-california-womens-prison .)

Prison Rape Elimination Act (PREA). PREA was passed by Congress in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: (1) to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; (2) to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; (3) to increase of the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and (4) to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape. (34 U.S.C. § 30301 et seq.) The act also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 Fed.Reg. 37106 (Jun. 20, 2012).) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse, investigation of sexual abuse, and access to medical and mental health care for inmate victims of sexual abuse.

CDCR PREA Policy. AB 550 (Goldberg, Chapter 303, Statutes of 2005) established the Sexual Abuse in Detention Elimination Act. The Act made several legislative findings and declarations regarding sexual abuse at CDCR institutions and required CDCR to adopt specified policies, practices, and protocols related to the placement of incarcerated individuals, physical and mental health care of victims who are incarcerated individuals, and investigation of sexual abuse. CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct, and sexual harassment against individuals incarcerated in CDCR facilities. (DOM §§ 54040.1-54040.22.) The policy applies to all incarcerated individuals and individuals employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole.

CDCR Regulations on Staff Sexual Misconduct and Sexual Harassment. CDCR regulations define staff sexual misconduct as “any sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of the Department of Corrections and Rehabilitation, which involves or is directed toward an inmate or parolee.” (Cal. Code of Regs., tit. 15, § 3401.5, subd. (a).) Regulations specify that the legal concept of consent does not exist between CDCR staff and incarcerated individuals, and that any sexual behavior between them constitutes sexual misconduct and will subject the employee to disciplinary action and/or to prosecution. (Ibid.)

Section 3401.5 provides that sexual misconduct includes, but is not limited to: (1) influencing or offering to influence an incarcerated individual’s safety, custody, housing, privileges, or programming, or offering goods or services, in exchange for sexual favors; (2) threatening an incarcerated individual’s safety, custody, housing, privileges, work detail, or programming because the incarcerated individual has refused to engage in sexual behavior; (3) engaging in a sexual act or contact, as defined; display by staff, in the presence of an incarcerated individual, of the staff person’s uncovered genitalia, buttocks, or breast; and (4) voyeurism, defined as an invasion of privacy of an incarcerated individual by staff for reasons unrelated to official duties, by a staff person, including volunteers or independent contractors. Retaliatory measures against an incarcerated individual who reports an incident of staff sexual misconduct, including coercion, threats of punishment, or any other activities intended to discourage or prevent the reporting of sexual misconduct shall result in disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.5, subd. (f).)

Regulations define staff sexual harassment as “repeated verbal comments or gestures of a sexual nature to an offender by a staff member, volunteer, or contractor, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.” (Cal. Code of Regs., tit. 15, § 3401.6, subd. (a).) All allegations of staff sexual harassment are subject to review and investigation, and when appropriate, to disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.6, subd. (b).) The employee reporting requirements and prohibition on retaliation for reporting that is applicable to staff sexual misconduct apply to staff sexual harassment. (Cal. Code of Regs., tit. 15, § 3401.6, subds. (c), (d).)

CDCR Policies Regarding Staff Misconduct Complaints. In general, complaints regarding staff misconduct are referred to the Centralized Screening Team (CST) which is part of CDCR’s OIA. However, allegations of staff misconduct toward an incarcerated person involving use of force and PREA complaints are referred to the Allegation Investigation Unit (AIU) for an investigation. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(1).) For complaints other than use of force or PREA complaints, the CST must determine whether to refer the complaint to the AIU or to the hiring authority. If the CST determines that the allegation is one that requires specialized investigative skills or resources, it is referred to the AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(2).) If it does not require specialized investigative skills or resources, it is referred to the hiring authority for assignment to a locally designated investigator (LDI), a CDCR staff member trained by the OIA to collect evidence concerning the complaint, unless CST refers it to AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(3).)

Section 3486.2 lays out the procedures for complaints that are referred to the AIU and those that are referred to the warden. If the LDI finds evidence of staff misconduct which may not require specialized investigative skills or resources but which may result in the staff member being disciplined, the LDI must document the evidence and refer it to the hiring authority for review. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(A).) If the hiring authority agrees with the LDI, the complaint is referred to AIU for investigation or request for direct adverse action. (Ibid.) If the hiring authority does not believe adverse action may result, the matter is returned to the LDI for completion of the inquiry. (Ibid.) If the LDI discovers evidence of staff misconduct which requires investigative skills or resources, the LDI is required to summarize the facts and evidence gathered during the inquiry and refer the matter to AIU for an investigation with notification to the hiring authority. (Ibid.)

Upon completion of an investigation, the LDI must prepare a confidential draft report and submit it to the AIU manager for review and approval. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(B).) During the review, the AIU manager must determine whether the investigation is sufficient, complete, and unbiased. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(4)(A).) Once approved, the report is provided to the hiring authority. (Ibid.) If the hiring authority finds the investigation insufficient to determine a finding for each allegation, the hiring authority must request additional fact gathering. (Ibid.) If the hiring authority finds the investigation sufficient to determine a finding for each allegation, they must do so in accordance with section 3392.1 which specifies the types of findings (i.e., no finding, not sustained, unfounded, exonerated, and sustained). (Ibid.) When a hiring authority finds that an allegation of misconduct is sustained, only corrective action can be imposed unless a request for direct adverse action is approved by OIA. (Cal. Code of Regs., tit. 15, § 3392.1, subd. (c).) For additional information regarding adverse actions, please see the policy committee analysis.

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

According to the Assembly Appropriations Committee:

Costs (General Fund) to OIG to monitor complaints as authorized by the bill. OIG anticipates needing a minimum of 24 new permanent positions for an annual ongoing cost of approximately $5.7 million. OIG estimates CDCR currently receives about 1,500 complaints alleging sexual misconduct each year. Although OIG does not anticipate monitoring each complaint, adding 24 additional staff positions would allow OIG to monitor and investigate approximately one quarter of qualifying complaints or 360 cases per year. OIG’s cost estimate includes 12 attorneys, three attorney supervisors, six associate deputy inspectors general, one senior deputy inspector general, and two administrative support staff to conduct and support this work.

OIG reports that in addition to the costs described above, the office may need additional resources in the future, depending on the need for the office to exercise its investigative authority. These additional costs could be in the hundreds of thousands to low millions of dollars depending on the amount of additional staffing needed to conduct investigations.

Possible costs (General Fund) to CDCR of an unknown but potentially significant amount to the extent operating parallel investigations with the OIG and complying with OIG investigations increase CDCR’s workload.

SUPPORT: (Verified 8/26/24)

California Coalition for Women Prisoners (co-source)

Sister Warriors Freedom Coalition (co-source)

ValorUS (co-source)

Alliance for Boys and Men of Color

California Immigrant Policy Center

California Partnership to End Domestic Violence

California Public Defenders Association

Californians for Safety and Justice

Californians United for A Responsible Budget

Catalyst

Center on Juvenile and Criminal Justice

Communities United for Restorative Youth Justice

Ella Baker Center for Human Rights

Families Against Mandatory Minimums

Family Services of Tulare County

Felony Murder Elimination Project

Free to Thrive

GRIP Training Institute

Haywood Burns Institute

Healthy Alternatives to Violent Environments

Hollywood Now

Initiate Justice

Initiate Justice Action

Just Detention International

Justice First

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners With Children

Modoc Crisis Center

Mountain Crisis Services

North County Rape Crisis and Child Protection Center

Oakland Privacy

Partners Against Violence

Peace Over Violence

PREVAIL

Project Sister Family Services

Rape Counseling Services of Fresno

Rape Trauma Services: A Center for Healing and Violence Prevention

Riverside Area Rape Crisis Center

Root & Rebound

Rubicon Programs

San Francisco Public Defender

San Francisco Women Against Rape

Smart Justice California

Stand Up Placer, Inc.; Strength United

The Amelia Ann Adams Whole Life Center

Transformative In-Prison Workgroup

Transitions Clinic Network

Wild Iris Family Counseling & Crisis Center

Women’s Center-High Desert, Inc.

Young Women's Freedom Center

YWCA Golden Gate Silicon Valley

OPPOSITION: (Verified 8/26/24)

None received

Prepared by: Stephanie Jordan / PUB. S. /

8/28/24 22:04:56

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1069

Author:(Menjivar)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Grants the Office of the Inspector General (OIG) investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person, and authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

Major Provisions

1. Provide that, to facilitate oversight of the Department of Corrections and Rehabilitation (CDCR) internal affairs investigations, OIG shall have staff physically co-located with CDCR's Office of Internal Affairs within a reasonable timeframe and without undue delays.
2. Provide that OIG shall be responsible for advising the public regarding the adequacy of each investigation and whether discipline of the subject of the investigation is warranted.
3. Provide that OIG shall have discretion to provide public oversight of other CDCR personnel investigations, as needed.
4. Provide that OIG shall have investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person.
5. Provide that OIG may monitor and investigate a complaint that involves sexual misconduct with an incarcerated person, as follows:
   1. OIG may exercise its investigatory authority in both of the following situations:
      1. OIG may perform a full investigation into a complaint that involves sexual misconduct that CDCR has not opened for investigation.
      2. During an investigation being performed by CDCR, if OIG determines the department is not performing an adequate investigation, OIG may perform the supplemental investigative measures it deems necessary to ensure the investigation is performed adequately, including, but not limited to, interviewing subjects and witnesses, reviewing and gathering records, and collecting evidence.
   2. OIG shall not exercise its investigative authority in a manner that duplicates investigative efforts or interferes with an ongoing investigation being performed by CDCR.
6. Require OIG, upon completion of an investigation, to compile an investigation report and provide a copy of the report, together with all underlying evidence gathered during the investigation, to the appropriate hiring authority within CDCR.
7. Require OIG to monitor the actions the hiring authority takes after receiving the investigation report and report the results of its monitoring in accordance, as specified.

COMMENTS

According to the Author

"SB 1069 will work to protect incarcerated survivors of sexual misconduct involving staff within the California Department of Corrections and Rehabilitation (CDCR). Decades of sexual misconduct, including recent horrific events documented at the Central California Women's Facility (CCWF) and the California Institution for Women (CIW) have demonstrated that a new process for sexual misconduct cases and complaints is necessary. Wardens at both institutions were relieved of duty as recently as 2023 following scandals, including rampant sexual abuse and suicides.

"According to the National Resource Center on Domestic Violence, approximately 60-70% of incarcerated women or girls have reported experiencing physical or sexual violence in childhood, and 70-80% of incarcerated women have reported adulthood intimate partner violence. Incarcerated people deserve to have confidence in the Department, processes and entities in place to protect them while in state custody. SB 1069 will create more accountability in the investigation of staff sexual misconduct by authorizing [OIG] to monitor and investigate complaints of sexual misconduct. Ultimately, this will create a more meaningful pathway for victims of sexual misconduct by CDCR staff to have their reports thoroughly investigated and fairly addressed."

Arguments in Support

According to the ACLU California Action: "Currently, following internal investigations of employee sexual misconduct, prison wardens have the sole authority to review completed investigation reports, determine the findings of the investigation, and decide on appropriate disciplinary action. This process is fundamentally flawed due to a lack of oversight and an inherent conflict of interest in purely internal investigations. Oversight by the OIG has consistently shown that investigations are frequently lacking or incomplete and that warden determinations are often inadequate. Decades of sexual misconduct, including recent events at the Central California Women's Facility (CCWF) and the California Institution for Women (CIW), have demonstrated that a new process is necessary.

"SB 1069 would require OIG to participate in determining the outcome of employee sexual misconduct. Instances when OIG identifies problems with the investigation outcome will require information-sharing with the Department of Justice (DOJ).

"SB 1069 will serve as a short-term fix to CDCR's current staff sexual misconduct investigation process. It will require CDCR to share decision-making responsibility with the OIG when determining appropriate outcomes for all staff sexual misconduct investigations. If there is disagreement among the shared decision makers, the OIG would prepare a report documenting the disagreement to be submitted to the Secretary of CDCR for final decision and to the Department of Justice for consideration. Granting the OIG investigatory authority will allow for a more meaningful oversight over CDCR's investigation process.

"This bill will build trust in the investigations process, increasing the likelihood that victims will report staff abuse. By ensuring that independent stakeholders are involved in CDCR's employee sexual misconduct investigations, SB 1069 would address concerns about conflict of interest and increase safety for survivors."

Arguments in Opposition:

None.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs (General Fund) of an unknown but significant amount to OIG to monitor complaints as authorized by the bill, possibly in the low millions of dollars annually for additional staffing. OIG estimates CDCR currently receives about 1,500 complaints alleging sexual misconduct each year. Although OIG does not anticipate monitoring each complaint, adding 24 additional staff positions would allow OIG to monitor and investigate approximately one quarter of qualifying complaints or 360 cases per year. OIG reports that the office may need additional resources in the future, depending on the need for the office to exercise its investigative authority. These additional costs could be in the hundreds of thousands to low millions of dollars depending on the amount of additional staffing needed to conduct investigations.
2. Possible costs (General Fund) to CDCR of an unknown but potentially significant amount to the extent operating parallel investigations with the OIG and complying with OIG investigations increase CDCR's workload.

VOTES

SENATE FLOOR: 38-0-2

YES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta

ASM PUBLIC SAFETY: 7-0-1

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Zbur

ABS, ABST OR NV: Wilson

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: August 19, 2024

CONSULTANT: Ilan Zur/ Kimberly Horiuchi / PUB. S. / (916) 319-3744 FN: 0004015

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1069

Author:(Menjivar) – As Amended Ver:May 16, 2024

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

SUMMARY:

This bill expands the authority of the Office of the Inspector General (OIG) over staff misconduct cases and complaints involving sexual misconduct with an incarcerated person in the California Department of Corrections and Rehabilitation (CDCR).

Specifically, this bill:

1. Grants the OIG investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person.
2. Provides that the OIG may monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

FISCAL EFFECT:

1. Costs (General Fund) to OIG to monitor complaints as authorized by the bill. OIG anticipates needing a minimum of 24 new permanent positions for an annual ongoing cost of approximately $5.7 million. OIG estimates CDCR currently receives about 1,500 complaints alleging sexual misconduct each year. Although OIG does not anticipate monitoring each complaint, adding 24 additional staff positions would allow OIG to monitor and investigate approximately one quarter of qualifying complaints or 360 cases per year. OIG’s cost estimate includes 12 attorneys, three attorney supervisors, six associate deputy inspectors general, one senior deputy inspector general, and two administrative support staff to conduct and support this work.

OIG reports that in addition to the costs described above, the office may need additional resources in the future, depending on the need for the office to exercise its investigative authority. These additional costs could be in the hundreds of thousands to low millions of dollars depending on the amount of additional staffing needed to conduct investigations.

1. Possible costs (General Fund) to CDCR of an unknown but potentially significant amount to the extent operating parallel investigations with the OIG and complying with OIG investigations increase CDCR’s workload.

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:

Decades of sexual misconduct, including recent horrific events documented at the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW) have demonstrated that a new process for sexual misconduct cases and complaints is necessary. Wardens at both institutions were relieved of duty as recently as 2023 following scandals, including rampant sexual abuse and suicides…Incarcerated people deserve to have confidence in the Department, processes and entities in place to protect them while in state custody.  SB 1069 will create more accountability in the investigation of staff sexual misconduct by authorizing [OIG] to monitor and investigate complaints of sexual misconduct.

1. Background. The OIG is an independent agency responsible for providing oversight of California state prisons. The office monitors conditions within CDCR facilities and regularly reviews CDCR’s policies, practices, and procedures. Among other responsibilities, the OIG provides oversight over investigations and staff grievance inquiries conducted by CDCR’s Office of Internal Affairs (OIA). Current law requires the OIG to determine the adequacy of each investigation and whether discipline of the subject of the investigation is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations.

This bill grants the OIG investigatory authority over CDCR staff misconduct cases that involve sexual misconduct with an incarcerated person, and permits the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person. As described above, the OIG anticipates exercising the authority granted by this bill to monitor a percentage of qualifying complaints and evaluate CDCR’s response to them. The OIG reports that it expects to conduct investigations when CDCR fails to investigate an allegation of sexual misconduct against an incarcerated person, or when CDCR fails to complete a thorough investigation, in which case the OIG would conduct a supplementary investigation.

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

Date of Hearing: June 18, 2024

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1069

Author:(Menjivar) – As Amended Ver:May 16, 2024

SUMMARY: Grants the Office of the Inspector General (OIG) investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person, and authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

EXISTING LAW:

1. Establishes the independent OIG. (Pen. Code, § 6125.)
2. Provides that the Inspector General (IG) is responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of the Department of Corrections and Rehabilitation (CDCR) under policies to be developed by the IG. (Pen. Code, § 6126, subd. (a).)
3. Authorizes the IG to initiate an audit or review of policies, practices, and procedures of CDCR when requested by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly. Requires the IG to, during the course of an audit or review, identify areas of full and partial compliance, or noncompliance, with departmental policies and procedures, specify deficiencies in the completion and documentation of processes, and recommend corrective actions, including, but not limited to, additional training, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate. Requires the IG to prepare a written public report upon completion of an audit or review. (Pen. Code, § 6126, subds. (b)-(d).)
4. Requires the IG to provide contemporaneous oversight of grievances that fall within the OIG’s process for reviewing and investigating inmate allegations of staff misconduct and other specialty grievances, examining compliance with regulations, department policy, and best practices. Specifies that the contemporaneous oversight be completed in a way that does not unnecessarily slow the department’s review and investigation of inmate allegations of staff misconduct, and other specialty grievances. Requires the IG to issue reports annually, beginning in 2021. (Pen. Code, § 6126, subd. (i).)
5. Requires the IG to monitor the department’s process for reviewing uses of force and to issue reports annually. (Pen. Code, § 6126, subd. (j).)
6. Requires the OIG to be responsible for contemporaneous public oversight of CDCR investigations and staff grievance inquiries conducted by the department’s Office of Internal Affairs (OIA). Provides that the OIG have staff physically co-located with CDCR’s OIA to facilitate oversight of the department’s internal affairs investigations. Requires the OIG to be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. Provides that the OIG has discretion to provide public oversight of other CDCR personnel investigations as needed. (Pen. Code, § 6133, subd. (a).)
7. Requires the OIG to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force. (Pen. Code, § 6133, subd. (b)(1).)
8. Requires the OIG to also issue regular reports, no less than semiannually, summarizing its oversight of OIA investigations. Requires the report to include, but not be limited to, all of the following:
9. Data on the number, type, and disposition of complaints made against correctional officers and staff.
10. A synopsis of each matter reviewed by the OIG.
11. An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the OIG’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the OIG recommendations regarding disposition and level of discipline.
12. The report of any settlement and whether the OIG concurred with the settlement.
13. The extent to which any discipline was modified after imposition. (Pen. Code, § 6133, subd. (b)(1).)
14. Requires the reports to be in a form that does not identify the agency employees involved in the alleged misconduct. Requires the reports be posted on the IG’s website and otherwise made available to the public upon their release to the Governor and the Legislature. (Pen. Code, § 6133, subds. (b)(2) and (3).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, "SB 1069 will work to protect incarcerated survivors of sexual misconduct involving staff within the California Department of Corrections and Rehabilitation (CDCR). Decades of sexual misconduct, including recent horrific events documented at the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW) have demonstrated that a new process for sexual misconduct cases and complaints is necessary. Wardens at both institutions were relieved of duty as recently as 2023 following scandals, including rampant sexual abuse and suicides.

According to the National Resource Center on Domestic Violence, approximately 60-70% of incarcerated women or girls have reported experiencing physical or sexual violence in childhood, and 70-80% of incarcerated women have reported adulthood intimate partner violence. Incarcerated people deserve to have confidence in the Department, processes and entities in place to protect them while in state custody.  SB 1069 will create more accountability in the investigation of staff sexual misconduct by authorizing [OIG] to monitor and investigate complaints of sexual misconduct. Ultimately, this will create a more meaningful pathway for victims of sexual misconduct by CDCR staff to have their reports thoroughly investigated and fairly addressed.”

1. OIG’s Monitoring of CDCR: The OIG is an independent office that provides oversight of CDCR’s internal affairs investigations and the disciplinary process as well as oversight of grievances that fall within CDCR’s process for reviewing and investigating allegations of staff misconduct. Current law requires the OIG to determine the adequacy of each investigation and whether discipline is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations. All reports are required to be posted on the IG’s website and otherwise made publicly available. California’s prisons—and the women’s prisons especially —have been plagued with allegations of staff sexual assault and sexual misconduct for years.^[1]

Earlier this year, 130 individuals formerly incarcerated at the California Institution for Women (CIW) and Central California Women’s Facility (CCWF) filed a lawsuit against CDCR and 30 current and former correctional officers alleging that they were sexually abused while in prison. The lawsuit alleges the sexual abuse occurred throughout the prisons, including in cells, closets, and storage rooms, and alleges a variety of sexual abuse, including groping, forced oral copulation, and rape. In 2023, a former correctional officer at CCWF was arrested for sexually assaulting 13 incarcerated individuals over nine years and was charged with 96 counts of rape, sodomy, sexual battery, and rape under color of authority.^[2]

1. Prison Rape Elimination Act (PREA): PREA was passed by Congress in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; to increase the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape.^[3] PREA also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 F.R.D. 37106.) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse, investigation of sexual abuse, and access to medical and mental health care for inmate victims of sexual abuse.

The PREA standards contemplate ways for particular vulnerable inmates who identify as LGBTIA+ or whose appearance or manner does not conform to traditional gender expectations. (Id. at pp. 37149-37154.) The standards require training in effective and professional communication with LGBTIA and gender nonconforming inmates and require the screening process to consider whether the inmate is, or is perceived to be, LGBTI or gender nonconforming. The standards also require that post-incident reviews consider whether the incident was motivated by the inmate’s LGBTIA+ identification, status, or perceived status.

In addition, the standards do not allow placement of LGBTIA+ inmates in dedicated facilities, units, or wings in adult prisons, jails, or community confinement facilities solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.

The standards impose a complete ban on searching or physically examining a transgender inmate for the sole purpose of determining the inmate’s genital status. Agencies are required to train security staff in conducting professional and respectful cross-gender pat-down searches and searches of transgender inmates. In deciding whether to assign a transgender inmate to a facility for male or female inmates, and in making other housing and programming assignments, an agency may not simply assign the inmate to a facility based on genital status. Rather, the agency must consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems, giving serious consideration to the inmate’s own views regarding their own safety. In addition, the standards require that transgender inmates be given the opportunity to shower separately from other inmates.

CDCR PREA Policy: AB 550 (Goldberg, Chapter 303, Statutes of 2005) established the Sexual Abuse in Detention Elimination Act. The Act requires CDCR to adopt specified policies, practices, and protocols related to the placement of inmates, physical and mental health care of inmate victims, and investigation of sexual abuse. CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct, and sexual harassment against CDCR inmates. (DOM §§ 54040.1-5404.22.) The policy applies to all offenders and persons employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole. With respect to inmates who are at a high risk for sexual victimization, CDCR’s PREA policy provides:

Offenders at high risk for sexual victimization, as identified on the electronic Initial Housing Review, shall not be placed in segregated housing unless an assessment of all available alternatives has been completed, and a determination has been made that there is no available alternative means of separation from likely abusers.

Offenders at high risk for sexual victimization shall have a housing assessment completed immediately or within 24 hours of placement into segregated housing. . . . If a determination is made at the conclusion of the assessment that there are no available alternative means of separation from likely abusers, the inmate will be retained in segregated housing…The offender’s retention in segregation should not ordinarily exceed 30 days. (Italics added) (DOM § 54040.6.)

The policy further provides:

Based on information that the offender has been a victim of sexual violence or victimization, the custody supervisor conducting the initial screening shall discuss housing alternatives with the offender in a private location. The custody supervisor shall not automatically place the offender into administrative segregation. Consideration shall be given to housing this offender with another offender who has compatible housing needs. . . .

An inmate’s risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of sexual victimization or abusiveness. (DOM § 54040.7.)

OIG is uniquely equipped to investigate allegations of sexual assault given it already investigates other staff misconduct. This appears to be an effective step to address issues of sexual assault in prisons and jails.

1. Argument in Support: According to the ACLU California Action: Currently, following internal investigations of employee sexual misconduct, prison wardens have the sole authority to review completed investigation reports, determine the findings of the investigation, and decide on appropriate disciplinary action. This process is fundamentally flawed due to a lack of oversight and an inherent conflict of interest in purely internal investigations. Oversight by the OIG has consistently shown that investigations are frequently lacking or incomplete and that warden determinations are often inadequate. Decades of sexual misconduct, including recent events at the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW), have demonstrated that a new process is necessary.

SB 1069 would require OIG to participate in determining the outcome of employee sexual misconduct. Instances when OIG identifies problems with the investigation outcome will require information-sharing with the Department of Justice (DOJ). SB 1069 will serve as a short-term fix to CDCR’s current staff sexual misconduct investigation process. It will require CDCR to share decision-making responsibility with the OIG when determining appropriate outcomes for all staff sexual misconduct investigations. If there is disagreement among the shared decision makers, the OIG would prepare a report documenting the disagreement to be submitted to the Secretary of CDCR for final decision and to the Department of Justice for consideration. Granting the OIG investigatory authority will allow for a more meaningful oversight over CDCR’s investigation process. This bill will build trust in the investigations process, increasing the likelihood that victims will report staff abuse. By ensuring that independent stakeholders are involved in CDCR’s employee sexual misconduct investigations, SB 1069 would address concerns about conflict of interest and increase safety for survivors.

1. Argument in Opposition: None on file.
   
2. Related Legislation: AB 1986 (Bryan) requires the Office of The Inspector General (OIG) to add to its website a “Centralized List of Disapproved Publications” as maintained by the California Department of Corrections and Rehabilitations (CDCR) and allows for the OIG to review each publication and determine whether it should remain disapproved or be allowed for use by incarcerated persons. AB 1986 is pending on Senate Third Reading.
   
3. Prior Legislation:
   1. SB 132 (Weiner) Chapter 182, Statutes of 2019 requires the California Department of Corrections and Rehabilitation (CDCR) to house an individual in a correctional facility consistent with their gender identity, except where the individual’s perception of their health and safety needs require a different placement or where there are significant security or management concerns regarding housing the individual based on their perception of safety.
   2. SB 990 (Wiener), of the 2017-2018 Legislative Session, was substantially similar to this bill and would have required CDCR to consider sexual orientation and gender identity when classifying inmates in order to prevent sexual violence. SB 990 was held in the Assembly Appropriations Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
Alliance for Boys and Men of Color
California Coalition for Women Prisoners
California Immigrant Policy Center
California Partnership to End Domestic Violence
California Public Defenders Association
Californians for Safety and Justice
Californians United for A Responsible Budget
Catalyst
Center on Juvenile and Criminal Justice
Communities United for Restorative Youth Justice
Ella Baker Center for Human Rights
Families Against Mandatory Minimums
Families Against Mandatory Minimums Foundation
Family Services of Tulare County
Felony Murder Elimination Project
Free to Thrive
Friends Committee on Legislation of California
Grip Training Institute
Haywood Burns Institute
Healthy Alternatives to Violent Environments
Hollywood Now
Initiate Justice
Initiate Justice Action
Just Detention International
Justice First
LA Defensa
Lawyers' Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoners With Children
Los Angeles County District Attorney's Office
Los Angeles Regional Reentry Partnership (LARRP)
Modoc Crisis Center
Mountain Crisis Services
Nextgen California
North County Rape Crisis and Child Protection Center
Oakland Privacy
Partners Against Violence
Peace Over Violence
Prevail
Project Sister Family Services
Rape Counseling Services of Fresno
Rape Trauma Services: a Center for Healing and Violence Prevention
Riverside Area Rape Crisis Center
Root & Rebound
Rubicon Programs
San Francisco Public Defender
San Francisco Women Against Rape
Sister Warriors Freedom Coalition
Smart Justice California, a Project of Tides Advocacy
Stand Up Placer, INC.
Strength United
The Amelia Ann Adams Whole Life Center
Transformative In-prison Workgroup
Transitions Clinic Network
Valorus
Wild Iris Family Counseling & Crisis Center
Women's Center-high Desert, INC.
Young Women's Freedom Center
YWCA Golden Gate Silicon Valley

Opposition

None.

Analysis Prepared by: Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. See Richard Winton, “’Every woman’s worst nightmare’: Lawsuit alleges widespread sexual abuse at California prisons for women,” located at (Jan. 18, 2024) available at <https://www.latimes.com/california/story/2024-01-18/every-womans-worst-nightmare-lawsuit-alleges-widespread-sexual-abuse-at-californias-womens-prisons.) ↑

2. Jeremy Childs, “Ex-corrections officer accused of raping 13 inmates in California women’s prison” (May 25, 2023) available at <https://www.latimes.com/california/story/2023-05-25/ex-corrections-officer-accused-of-raping-inmates-at-california-womens-prison) ↑

3. (34 U.S.C. § 30301 et seq. (previously classified as 42 U.S.C. § 15601 et seq.)) ↑

 THIRD READING  

Bill No: SB 1069

Author: Menjivar (D)

Amended: 5/16/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/2/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: State prisons: Office of the Inspector General

SOURCE: California Coalition for Women Prisoners

Sister Warriors Freedom Coalition

ValorUS

DIGEST:

1. This bill provides that the Office of the Inspector General (OIG) has investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person, and authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

ANALYSIS:

Existing law:

1. Establishes the independent OIG. (Pen. Code, § 6125.)
2. Provides that the Inspector General (IG) is responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of the Department of Corrections and Rehabilitation (CDCR) under policies to be developed by the IG. (Pen. Code, § 6126, subd. (a).)
3. Authorizes the IG to initiate an audit or review of policies, practices, and procedures of CDCR when requested by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly. Requires the IG to, during the course of an audit or review, identify areas of full and partial compliance, or noncompliance, with departmental policies and procedures, specify deficiencies in the completion and documentation of processes, and recommend corrective actions, including, but not limited to, additional training, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate. Requires the IG to prepare a written public report upon completion of an audit or review. (Pen. Code, § 6126, subds. (b)-(d).)
4. Requires the IG to provide contemporaneous oversight of grievances that fall within the department’s process for reviewing and investigating inmate allegations of staff misconduct and other specialty grievances, examining compliance with regulations, department policy, and best practices. Specifies that the contemporaneous oversight be completed in a way that does not unnecessarily slow the department’s review and investigation of inmate allegations of staff misconduct and other specialty grievances. Requires the IG to issue reports annually, beginning in 2021. (Pen. Code, § 6126, subd. (i).)
5. Requires the IG to monitor the department’s process for reviewing uses of force and to issue reports annually. (Pen. Code, § 6126, subd. (j).)
6. Requires the OIG to be responsible for contemporaneous public oversight of CDCR investigations and staff grievance inquiries conducted by the department’s Office of Internal Affairs (OIA). Provides that the OIG have staff physically co-located with CDCR’s OIA to facilitate oversight of the department’s internal affairs investigations. Requires the OIG to be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. Provides that the OIG has discretion to provide public oversight of other CDCR personnel investigations as needed. (Pen. Code, § 6133, subd. (a).)
7. Requires the OIG to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force. (Pen. Code, § 6133, subd. (b)(1).)
8. Requires the OIG to also issue regular reports, no less than semiannually, summarizing its oversight of OIA investigations. Requires the report to include, but not be limited to, all of the following:
9. Data on the number, type, and disposition of complaints made against correctional officers and staff.
10. A synopsis of each matter reviewed by the OIG.
11. An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the OIG’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the OIG recommendations regarding disposition and level of discipline.
12. The report of any settlement and whether the OIG concurred with the settlement.
13. The extent to which any discipline was modified after imposition. (Pen. Code, § 6133, subd. (b)(1).)
14. Requires the reports to be in a form that does not identify the agency employees involved in the alleged misconduct. Requires the reports be posted on the IG’s website and otherwise made available to the public upon their release to the Governor and the Legislature. (Pen. Code, § 6133, subds. (b)(2), (b)(3).)

This bill:

1. Provides that the OIG has investigatory authority over all staff misconduct cases that involve sexual misconduct with an incarcerated person.
2. Authorizes the OIG to monitor and investigate a complaint that involves sexual misconduct with an incarcerated person.

Background

OIG Oversight Authority. The OIG is an independent office that provides oversight of CDCR’s internal affairs investigations and the disciplinary process as well as oversight of grievances that fall within CDCR’s process for reviewing and investigating allegations of staff misconduct. Current law requires the OIG to determine the adequacy of each investigation and whether discipline of the subject of the investigation is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations. All reports are required to be posted on the IG’s website and otherwise made publicly available.

Ongoing Concerns Regarding Sexual Abuse of Incarcerated Individuals. California’s prisons—and the women’s prisons in particular—have been plagued with allegations of staff sexual assault and sexual misconduct for years. (See Richard Winton, ‘Every woman’s worst nightmare’: Lawsuit alleges widespread sexual abuse at California prisons for women (Jan. 18, 2024) available at <https://www.latimes.com/california/story/2024-01-18/every-womans-worst-nightmare-lawsuit-alleges-widespread-sexual-abuse-at-californias-womens-prisons .) Earlier this year, 130 individuals formerly incarcerated at the California Institution for Women (CIW) and Central California Women’s Facility (CCWF) filed a lawsuit against CDCR and 30 current and former correctional officers alleging that they were sexually abused while in prison. (Id.) The lawsuit alleges that the sexual abuse occurred throughout the prisons, including in cells, closets, and storage rooms, and alleges a variety of sexual abuse, including groping, forced oral copulation, and rape. (Id.) In 2023, a former correctional officer at CCWF was arrested for sexually assaulting 13 incarcerated individuals over nine years and was charged with 96 counts of rape, sodomy, sexual battery, and rape under color of authority. (Jeremy Childs, Ex-corrections officer accused of raping 13 inmates in California women’s prison (May 25, 2023) available at <https://www.latimes.com/california/story/2023-05-25/ex-corrections-officer-accused-of-raping-inmates-at-california-womens-prison .)

Prison Rape Elimination Act (PREA). PREA was passed by Congress in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: (1) to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; (2) to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; (2) to increase of the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and (3) to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape. (34 U.S.C. § 30301 et seq.) The act also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 Fed.Reg. 37106 (Jun. 20, 2012).) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse, investigation of sexual abuse, and access to medical and mental health care for inmate victims of sexual abuse.

CDCR PREA Policy. AB 550 (Goldberg, Chapter 303, Statutes of 2005) established the Sexual Abuse in Detention Elimination Act. The Act made several legislative findings and declarations regarding sexual abuse at CDCR institutions and required CDCR to adopt specified policies, practices, and protocols related to the placement of incarcerated individuals, physical and mental health care of victims who are incarcerated individuals, and investigation of sexual abuse. CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct, and sexual harassment against individuals incarcerated in CDCR facilities. (DOM §§ 54040.1-54040.22.) The policy applies to all incarcerated individuals and individuals employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole.

CDCR Regulations on Staff Sexual Misconduct and Sexual Harassment. CDCR regulations define staff sexual misconduct as “any sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of the Department of Corrections and Rehabilitation, which involves or is directed toward an inmate or parolee.” (Cal. Code of Regs., tit. 15, § 3401.5, subd. (a).) Regulations specify that the legal concept of consent does not exist between CDCR staff and incarcerated individuals, and that any sexual behavior between them constitutes sexual misconduct and will subject the employee to disciplinary action and/or to prosecution. (Ibid.)

Section 3401.5 provides that sexual misconduct includes, but is not limited to: (1) influencing or offering to influence an incarcerated individual’s safety, custody, housing, privileges, or programming, or offering goods or services, in exchange for sexual favors; (2) threatening an incarcerated individual’s safety, custody, housing, privileges, work detail, or programming because the incarcerated individual has refused to engage in sexual behavior; (3) engaging in a sexual act or contact, as defined; display by staff, in the presence of an incarcerated individual, of the staff person’s uncovered genitalia, buttocks, or breast; and (4) voyeurism, defined as an invasion of privacy of an incarcerated individual by staff for reasons unrelated to official duties, by a staff person, including volunteers or independent contractors. Retaliatory measures against an incarcerated individual who reports an incident of staff sexual misconduct, including coercion, threats of punishment, or any other activities intended to discourage or prevent the reporting of sexual misconduct shall result in disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.5, subd. (f).)

Regulations define staff sexual harassment as “repeated verbal comments or gestures of a sexual nature to an offender by a staff member, volunteer, or contractor, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.” (Cal. Code of Regs., tit. 15, § 3401.6, subd. (a).) All allegations of staff sexual harassment are subject to review and investigation, and when appropriate, to disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.6, subd. (b).) The employee reporting requirements and prohibition on retaliation for reporting that is applicable to staff sexual misconduct apply to staff sexual harassment. (Cal. Code of Regs., tit. 15, § 3401.6, subds. (c), (d).)

CDCR Policies Regarding Staff Misconduct Complaints. In general, complaints regarding staff misconduct are referred to the Centralized Screening Team (CST) which is part of CDCR’s OIA. However, allegations of staff misconduct toward an incarcerated person involving use of force and PREA complaints are referred to the Allegation Investigation Unit (AIU) for an investigation. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(1).) For complaints other than use of force or PREA complaints, the CST must determine whether to refer the complaint to the AIU or to the hiring authority. If the CST determines that the allegation is one that requires specialized investigative skills or resources, it is referred to the AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(2).) If it does not require specialized investigative skills or resources, it is referred to the hiring authority for assignment to a locally designated investigator (LDI), a CDCR staff member trained by the OIA to collect evidence concerning the complaint, unless CST refers it to AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(3).)

Section 3486.2 lays out the procedures for complaints that are referred to the AIU and those that are referred to the warden. If the LDI finds evidence of staff misconduct which may not require specialized investigative skills or resources but which may result in the staff member being disciplined, the LDI must document the evidence and refer it to the hiring authority for review. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(A).) If the hiring authority agrees with the LDI, the complaint is referred to AIU for investigation or request for direct adverse action. (Ibid.) If the hiring authority does not believe adverse action may result, the matter is returned to the LDI for completion of the inquiry. (Ibid.) If the LDI discovers evidence of staff misconduct which requires investigative skills or resources, the LDI is required to summarize the facts and evidence gathered during the inquiry and refer the matter to AIU for an investigation with notification to the hiring authority. (Ibid.)

Upon completion of an investigation, the LDI must prepare a confidential draft report and submit it to the AIU manager for review and approval. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(B).) During the review, the AIU manager must determine whether the investigation is sufficient, complete, and unbiased. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(4)(A).) Once approved, the report is provided to the hiring authority. (Ibid.) If the hiring authority finds the investigation insufficient to determine a finding for each allegation, the hiring authority must request additional fact gathering. (Ibid.) If the hiring authority finds the investigation sufficient to determine a finding for each allegation, they must do so in accordance with section 3392.1 which specifies the types of findings (i.e., no finding, not sustained, unfounded, exonerated, and sustained). (Ibid.) When a hiring authority finds that an allegation of misconduct is sustained, only corrective action can be imposed unless a request for direct adverse action is approved by OIA. (Cal. Code of Regs., tit. 15, § 3392.1, subd. (c).) For additional information regarding adverse actions, please see the policy committee analysis.

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

According to the Senate Appropriations Committee:

• Unknown, ongoing General Fund costs for the OIG for staffing resources for workload related to monitoring and investigating cases/complaints.
• No significant costs for the Department of Corrections and Rehabilitation (CDCR) or the Department of Justice (DOJ).

SUPPORT: (Verified 5/16/24)

California Coalition for Women Prisoners (co-source)

Sister Warriors Freedom Coalition (co-source)

ValorUS (co-source)

Alliance for Boys and Men of Color

California Immigrant Policy Center

California Partnership to End Domestic Violence

California Public Defenders Association

Californians for Safety and Justice

Californians United for A Responsible Budget

Catalyst

Center on Juvenile and Criminal Justice

Communities United for Restorative Youth Justice

Ella Baker Center for Human Rights

Families Against Mandatory Minimums

Family Services of Tulare County

Felony Murder Elimination Project

Free to Thrive

GRIP Training Institute

Haywood Burns Institute

Healthy Alternatives to Violent Environments

Hollywood Now

Initiate Justice

Initiate Justice Action

Just Detention International

Justice First

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area

Legal Services for Prisoners With Children

Modoc Crisis Center

Mountain Crisis Services

North County Rape Crisis and Child Protection Center

Oakland Privacy

Partners Against Violence

Peace Over Violence

PREVAIL

Project Sister Family Services

Rape Counseling Services of Fresno

Rape Trauma Services: A Center for Healing and Violence Prevention

Riverside Area Rape Crisis Center

Root & Rebound

Rubicon Programs

San Francisco Public Defender

San Francisco Women Against Rape

Smart Justice California

Stand Up Placer, Inc.; Strength United

The Amelia Ann Adams Whole Life Center

Transformative In-Prison Workgroup

Transitions Clinic Network

Wild Iris Family Counseling & Crisis Center

Women’s Center-High Desert, Inc.

Young Women's Freedom Center

YWCA Golden Gate Silicon Valley

OPPOSITION: (Verified 5/16/24)

None received

Prepared by: Stephanie Jordan / PUB. S. /

5/18/24 14:01:48

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1069 (Menjivar) - State prisons: Office of the Inspector General

Bill Summary:

SB 1069 would require the Office of the Inspector General (OIG) to monitor and have investigatory authority over all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2024

Fiscal Impact:

• Unknown, ongoing General Fund costs for the OIG for staffing resources for workload related to monitoring and investigating cases/complaints.
• No significant costs for the Department of Corrections and Rehabilitation (CDCR) or the Department of Justice (DOJ).

Author Amendments:

Require only that the OIG have investigatory authority over cases; and permit, rather than require, the OIG to monitor and investigate complaints.

Committee Amendments:

Delete joint decision-making authority for the OIG.

-- END --

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1069 (Menjivar) - State prisons: Office of the Inspector General

Bill Summary:

SB 1069 would authorize the Office of the Inspector General (OIG) to monitor and investigate all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person.

Fiscal Impact:

• The OIG estimates annual costs of $15.7 million (General Fund) for staffing resources for workload related to monitoring and investigating the cases/complaints.
• The Department of Corrections and Rehabilitation (CDCR) and the Department of Justice (DOJ) do not anticipate significant costs.

Background:

The OIG is an independent office that provides oversight of CDCR’s internal affairs investigations and the disciplinary process as well as oversight of grievances that fall within CDCR’s process for reviewing and investigating allegations of staff misconduct. The OIG additionally monitors CDCR’s process for reviewing uses of force, conducts periodic medical inspections to review the delivery of medical care in the state’s prisons, and reviews delivery of the reforms contained in “The Blueprint,” a document that identifies specific goals and reforms designed to save the state money, end federal court oversight, and improve the prison system. Finally, the OIG is authorized to initiate an audit or review of CDCR policies, practices, and procedures when requested by the Governor or Legislature.

The OIG provides oversight to CDCR’s Office of Internal Affairs (OIA) investigations and staff grievance inquiries. Current law requires the OIG to determine the adequacy of each investigation and whether discipline of the subject of the investigation is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations.

Proposed Law:

Specific provisions of the bill would:

• Require the OIG to monitor and have investigatory authority over all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person.
• Require the OIG to have joint decisionmaking authority, along with the wardens of the various state prisons, regarding both of the following:
  • The determination of whether a sexual misconduct case or complaint is substantiated.
  • How a prison shall respond to a substantiated sexual misconduct case or complaint.
• Require that if the OIG and the warden of a state prison do not agree on whether a sexual misconduct case or complaint is substantiated, the OIG must prepare a report documenting the disagreement and submit that report to both of the following:
  • The Secretary of CDCR, or their designee, for their review and final determination.
  • The Attorney General, or their designee, for their consideration.
• Provide that the Attorney General, or their designee, may do both of the following:
  • Investigate a sexual misconduct case or complaint referred to them.
  • If they deem it appropriate, respond to the Secretary of CDCR with their recommendation regarding a sexual misconduct case or complaint referred to them.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1069 Hearing Date: April 2, 2024

Subject: State prisons: Office of the Inspector General

HISTORY

Source: California Coalition for Women Prisoners; Sister Warriors Freedom Coalition; ValorUS

Prior Legislation: AB 102 (Ting), Ch. 38, Stats. 2023

Support: Alliance for Boys and Men of Color; California Immigrant Policy Center; California Public Defenders Association; Californians for Safety and Justice; Californians United for A Responsible Budget; Catalyst; Center on Juvenile and Criminal Justice; Communities United for Restorative Youth Justice; Ella Baker Center for Human Rights; Families Against Mandatory Minimums; Family Services of Tulare County; Felony Murder Elimination Project; Free to Thrive; GRIP Training Institute; Haywood Burns Institute; Healthy Alternatives to Violent Environments; Hollywood Now; Initiate Justice; Initiate Justice Action; Just Detention International; Justice First; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners With Children; Modoc Crisis Center; Mountain Crisis Services; North County Rape Crisis and Child Protection Center; Oakland Privacy; Partners Against Violence; Peace Over Violence; PREVAIL; Project Sister Family Services; Rape Counseling Services of Fresno; Rape Trauma Services: a Center for Healing and Violence Prevention; Riverside Area Rape Crisis Center; Root & Rebound; Rubicon Programs; San Francisco Public Defender; San Francisco Women Against Rape; Smart Justice California; Stand Up Placer, Inc.; Strength United; The Amelia Ann Adams Whole Life Center; Transformative In-Prison Workgroup; Transitions Clinic Network; Wild Iris Family Counseling & Crisis Center; Women’s Center-High Desert, Inc.; YWCA Golden Gate Silicon Valley

Opposition: None known

PURPOSE

The purpose of this bill is to: 1) authorize the Office of the Inspector General (OIG) to monitor and investigate all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person; 2) give the OIG joint decision-making authority along with the prison wardens regarding the determination of whether a sexual misconduct complaint is substantiated and the prison’s response to a substantiated sexual misconduct complaint; 3) require the OIG, in cases in which the OIG and warden disagree on whether a sexual misconduct complaint is substantiated, to prepare and submit a report to the Secretary of the Department of Corrections and Rehabilitation (CDCR) for review and final determination and to the Attorney General (AG) for consideration; and 4) authorize the AG to investigate a sexual misconduct complaint referred to it and respond to the Secretary of CDCR with their recommendation regarding that complaint.

Existing law establishes the independent Office of the Inspector General (OIG). (Pen. Code, § 6125.)

Existing law provides that the Inspector General (IG) is responsible for contemporaneous oversight of internal affairs investigations and the disciplinary process of the Department of Corrections and Rehabilitation (CDCR) under policies to be developed by the IG. (Pen. Code, § 6126, subd. (a).)

Existing law authorizes the IG to initiate an audit or review of policies, practices, and procedures of CDCR when requested by the Governor, the Senate Committee on Rules, or the Speaker of the Assembly. Requires the IG to, during the course of an audit or review, identify areas of full and partial compliance, or noncompliance, with departmental policies and procedures, specify deficiencies in the completion and documentation of processes, and recommend corrective actions, including, but not limited to, additional training, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate. Requires the IG to prepare a written public report upon completion of an audit or review. (Pen. Code, § 6126, subds. (b)-(d).)

Existing law requires the IG to provide contemporaneous oversight of grievances that fall within the department’s process for reviewing and investigating inmate allegations of staff misconduct and other specialty grievances, examining compliance with regulations, department policy, and best practices. Specifies that the contemporaneous oversight be completed in a way that does not unnecessarily slow the department’s review and investigation of inmate allegations of staff misconduct and other specialty grievances. Requires the IG to issue reports annually, beginning in 2021. (Pen. Code, § 6126, subd. (i).)

Existing law requires the IG to monitor the department’s process for reviewing uses of force and to issue reports annually. (Pen. Code, § 6126, subd. (j).)

Existing law requires the OIG to be responsible for contemporaneous public oversight of CDCR investigations and staff grievance inquiries conducted by the department’s Office of Internal Affairs (OIA). Provides that the OIG have staff physically co-located with CDCR’s OIA to facilitate oversight of the department’s internal affairs investigations. Requires the OIG to be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. Provides that the OIG has discretion to provide public oversight of other CDCR personnel investigations as needed. (Pen. Code, § 6133, subd. (a).)

Existing law requires the OIG to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force. (Pen. Code, § 6133, subd. (b)(1).)

Existing law requires the OIG to also issue regular reports, no less than semiannually, summarizing its oversight of OIA investigations. Requires the report to include, but not be limited to, all of the following:

• Data on the number, type, and disposition of complaints made against correctional officers and staff.
• A synopsis of each matter reviewed by the OIG.
• An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the OIG’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the OIG recommendations regarding disposition and level of discipline.
• The report of any settlement and whether the OIG concurred with the settlement.
• The extent to which any discipline was modified after imposition.

(Pen. Code, § 6133, subd. (b)(1).)

Existing law requires the reports to be in a form that does not identify the agency employees involved in the alleged misconduct. Requires the reports be posted on the IG’s website and otherwise made available to the public upon their release to the Governor and the Legislature. (Pen. Code, § 6133, subds. (b)(2), (b)(3).)

This bill requires the OIG to monitor and have investigatory authority over all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person.

This bill provides that the OIG has joint decision making authority, along with the wardens of the various state prisons, regarding both of the following:

• The determination of whether a sexual misconduct case or complaint is substantiated.
• How a prison responds to a substantiated sexual misconduct case or complaint.

This bill requires the OIG, if the OIG and the warden of a state prison do not agree on whether a sexual misconduct case or complaint is substantiated, to prepare a report documenting the disagreement and submit that report to both of the following:

• The Secretary of CDCR, or their designee, for their review and final determination.
• The AG, or their designee, for their consideration.

This bill authorizes the AG, or their designee, to do the following:

• Investigate a sexual misconduct case or complaint referred to them.
• If they deem it appropriate, respond to the Secretary of CDCR with their recommendation regarding a sexual misconduct case or complaint referred to them.

COMMENTS

1. Need For This Bill

According to the author:

SB 1069 will work to protect incarcerated survivors of sexual misconduct involving staff within the California Department of Corrections and Rehabilitation (CDCR). Decades of sexual misconduct, including recent horrific events documented at the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW) have demonstrated that a new process for sexual misconduct cases and complaints is necessary. Wardens at both institutions were relieved of duty as recently as 2023 following scandals, including rampant sexual abuse and suicides.

According to the National Resource Center on Domestic Violence, approximately 60-70% of incarcerated women or girls have reported experiencing physical or sexual violence in childhood, and 70-80% of incarcerated women have reported adulthood intimate partner violence. Incarcerated people deserve to have confidence in the Department, processes and entities in place to protect them while in state custody. SB 1069 will create a meaningful pathway for victims of sexual misconduct by CDCR staff to report instances of sexual misconduct with the assurance that multiple stakeholders, including one independent of CDCR, will determine the outcome of investigations. Specifically, this bill will give the Office of the Inspector General (OIG) responsibility to monitor and authority to investigate sexual misconduct cases and complaints involving staff and require that the outcome of an employee sexual misconduct investigation is a shared responsibility between the Warden and OIG. It will also promote transparency by requiring information-sharing with the Department of Justice.

1. OIG Oversight Authority

The OIG is an independent office that provides oversight of CDCR’s internal affairs investigations and the disciplinary process as well as oversight of grievances that fall within CDCR’s process for reviewing and investigating allegations of staff misconduct. The OIG additionally monitors CDCR’s process for reviewing uses of force, conducts periodic medical inspections to review the delivery of medical care in the state’s prisons, and reviews delivery of the reforms contained in “The Blueprint,” a document that identifies specific goals and reforms designed to save the state money, end federal court oversight, and improve the prison system. Finally, the OIG is authorized to initiate an audit or review of CDCR policies, practices, and procedures when requested by the Governor or Legislature.

As stated above, the OIG provides oversight to CDCR’s OIA investigations and staff grievance inquiries. Current law requires the OIG to determine the adequacy of each investigation and whether discipline of the subject of the investigation is warranted. The OIG is statutorily required to issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of CDCR allegations of internal misconduct and use of force, and regular reports, no less than semiannually, summarizing its oversight of OIA investigations. The report summarizing oversight of OIA investigations must include:

• Data on the number, type, and disposition of complaints made against correctional officers and staff.
• A synopsis of each matter reviewed by the OIG.
• An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the OIG’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the OIG recommendations regarding disposition and level of discipline.
• The report of any settlement and whether the Office of the Inspector General concurred with the settlement.
• The extent to which any discipline was modified after imposition.

All reports are required to be posted on the IG’s website and otherwise made publicly available.

1. Ongoing Concerns Regarding Sexual Abuse of Incarcerated Individuals

Sexual violence, sexual misconduct, and sexual harassment in the nation’s correctional facilities is prevalent. (See Char Adams, Hundreds of lawsuits allege decades of sexual abuse at Rikers Island (Dec. 5, 2023) available at <https://www.nbcnews.com/news/nbcblk/sexual-abuse-lawsuits-rikers-island-new-york-adult-survivors-act-rcna126898>; Lisa Fernandez, More than 60 sex abuse, retaliation lawsuits filed against officers at FCI Dublin (Mar. 8, 2024) available at <https://www.ktvu.com/news/more-than-60-sex-abuse-retaliation-lawsuits-filed-against-officers-at-fci-dublin>; Stacey Barchenger, NJ to pay $21M for assaults at women’s prison, federal oversight coming (Apr. 8, 2021) available at <https://www.northjersey.com/story/news/new-jersey/2021/04/08/nj-settlement-edna-mahan-million-assaults-womens-prison-federal-consent-decree/7140814002/>; Alysia Santo, Preying on prisoners: When Texas guards demand sex (Jun. 17, 2015) available at <https://www.texastribune.org/2015/06/17/preying-texas-prisoners-when-guards-demand-sex/>.) The Bureau of Justice Statistics conducts an annual Survey of Sexual Victimization which is administered to all federal and state prisons, all facilities operated by the military and U.S. Immigration and Customs Enforcement, and representative samples of public and private jails, private prisons, and jails holding adults on Native American territory. (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Sexual Victimization Reported By Adult Correctional Authorities, 2016-2018 (Jun. 2021), pp. 1-2 available at <https://bjs.ojp.gov/content/pub/pdf/svraca1618.pdf>.) As part of the survey, correctional administrators provide annual totals of allegations of five types of sexual victimization which are determined by the type of incident (e.g., nonconsensual sexual acts, abusive sexual conduct, and sexual harassment) and perpetrator (e.g., incarcerated individual or staff). (Id. at p. 2.) Between 2016 and 2018, there were 45,581 allegations of sexual victimization reported by the nation’s prisons and jails in which a staff member was the perpetrator. (Id. at p. 6.)

Between 2016 and 2018, correctional authorities reported 2,229 substantiated incidents of sexual victimization perpetrated by staff on an incarcerated person. (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Substantiated Incidents of Sexual Victimization Reported By Adult Correctional Authorities, 2016-2018 (Jan. 2023), p. 1 available at <https://bjs.ojp.gov/document/sisvraca1618.pdf>.) Of those 2,229 substantiated incidents, 1,549 were sexual misconduct incidents and 680 were sexual harassment incidents. (Id. at p. 10.) The overwhelming majority of sexual harassment or sexual misconduct incidents perpetrated by staff were perpetrated by correctional officers or other custodial staff although maintenance staff, medical staff, administrative staff, program staff, and other staff were also found to have victimized incarcerated individuals. (Id. at p. 13.)

California’s prisons—and the women’s prisons in particular—have been plagued with allegations of staff sexual assault and sexual misconduct for years. (See Richard Winton, ‘Every woman’s worst nightmare’: Lawsuit alleges widespread sexual abuse at California prisons for women (Jan. 18, 2024) available at <https://www.latimes.com/california/story/2024-01-18/every-womans-worst-nightmare-lawsuit-alleges-widespread-sexual-abuse-at-californias-womens-prisons>.) Earlier this year, 130 individuals formerly incarcerated at the California Institution for Women (CIW) and Central California Women’s Facility (CCWF) filed a lawsuit against CDCR and 30 current and former correctional officers alleging that they were sexually abused while in prison. (Id.) The lawsuit alleges that the sexual abuse occurred throughout the prisons, including in cells, closets, and storage rooms, and alleges a variety of sexual abuse, including groping, forced oral copulation, and rape. (Id.) In 2023, a former correctional officer at CCWF was arrested for sexually assaulting 13 incarcerated individuals over nine years and was charged with 96 counts of rape, sodomy, sexual battery, and rape under color of authority. (Jeremy Childs, Ex-corrections officer accused of raping 13 inmates in California women’s prison (May 25, 2023) available at <https://www.latimes.com/california/story/2023-05-25/ex-corrections-officer-accused-of-raping-inmates-at-california-womens-prison>.)

1. Prison Rape Elimination Act (PREA)

PREA was passed by Congress in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; to increase of the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape. (34 U.S.C. § 30301 et seq.) The act also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

PREA Standards

The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 Fed.Reg. 37106 (Jun. 20, 2012).) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse, investigation of sexual abuse, and access to medical and mental health care for inmate victims of sexual abuse.

CDCR PREA Policy

AB 550 (Goldberg), Chapter 303, Statutes of 2005, established the Sexual Abuse in Detention Elimination Act. The Act made several legislative findings and declarations regarding sexual abuse at CDCR institutions and required CDCR to adopt specified policies, practices, and protocols related to the placement of incarcerated individuals, physical and mental health care of victims who are incarcerated individuals, and investigation of sexual abuse.

CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct, and sexual harassment against individuals incarcerated in CDCR facilities. (DOM §§ 54040.1-54040.22.) The policy applies to all incarcerated individuals and individuals employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole.

1. CDCR Regulations on Staff Sexual Misconduct and Sexual Harassment

CDCR regulations define staff sexual misconduct as “any sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of the Department of Corrections and Rehabilitation, which involves or is directed toward an inmate or parolee.” (Cal. Code of Regs., tit. 15, § 3401.5, subd. (a).) Regulations specify that the legal concept of consent does not exist between CDCR staff and incarcerated individuals, and that any sexual behavior between them constitutes sexual misconduct and will subject the employee to disciplinary action and/or to prosecution. (Ibid.)

Section 3401.5 provides that sexual misconduct includes, but is not limited to: influencing or offering to influence an incarcerated individual’s safety, custody, housing, privileges, or programming, or offering goods or services, in exchange for sexual favors; threatening an incarcerated individual’s safety, custody, housing, privileges, work detail, or programming because the incarcerated individual has refused to engage in sexual behavior; engaging in a sexual act or contact, as defined; display by staff, in the presence of an incarcerated individual, of the staff person’s uncovered genitalia, buttocks, or breast; voyeurism, defined as an invasion of privacy of an incarcerated individual by staff for reasons unrelated to official duties, by a staff person, including volunteers or independent contractors.

An employee who observes, or who receives information from any source concerning staff sexual misconduct, is required to immediately report the information or incident directly to the hiring authority, unit supervisor, or highest-ranking official on duty. (Cal. Code of Regs., tit. 15, § 3401.5, subd. (c).) Failure to accurately and promptly report any incident, information, or facts which would lead a reasonable person to believe sexual misconduct has occurred may subject the employee who failed to report it to disciplinary action. (Ibid.) Retaliatory measures against an incarcerated individual who reports an incident of staff sexual misconduct, including coercion, threats of punishment, or any other activities intended to discourage or prevent the reporting of sexual misconduct shall result in disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.5, subd. (f).)

Regulations define staff sexual harassment as “repeated verbal comments or gestures of a sexual nature to an offender by a staff member, volunteer, or contractor, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.” (Cal. Code of Regs., tit. 15, § 3401.6, subd. (a).) All allegations of staff sexual harassment are subject to review and investigation, and when appropriate, to disciplinary action and/or criminal prosecution. (Cal. Code of Regs., tit. 15, § 3401.6, subd. (b).) The employee reporting requirements and prohibition on retaliation for reporting that is applicable to staff sexual misconduct apply to staff sexual harassment. (Cal. Code of Regs., tit. 15, § 3401.6, subds. (c), (d).)

1. CDCR Policies Regarding Staff Misconduct Complaints

In general, complaints regarding staff misconduct are referred to the Centralized Screening Team (CST) which is part of CDCR’s OIA. However, allegations of staff misconduct toward an incarcerated person involving use of force and PREA complaints are referred to the Allegation Investigation Unit (AIU) for an investigation. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(1).) For complaints other than use of force or PREA complaints, the CST must determine whether to refer the complaint to the AIU or to the hiring authority. If the CST determines that the allegation is one that requires specialized investigative skills or resources, it is referred to the AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(2).) If it does not require specialized investigative skills or resources, it is referred to the hiring authority for assignment to a locally designated investigator (LDI), a CDCR staff member trained by the OIA to collect evidence concerning the complaint, unless CST refers it to AIU. (Cal. Code of Regs., tit. 15, § 3486, subd. (d)(3).)

Section 3486.2 lays out the procedures for complaints that are referred to the AIU and those that are referred to the warden. If the LDI finds evidence of staff misconduct which may not require specialized investigative skills or resources but which may result in the staff member being disciplined, the LDI must document the evidence and refer it to the hiring authority for review. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(A).) If the hiring authority agrees with the LDI, the complaint is referred to AIU for investigation or request for direct adverse action. (Ibid.) If the hiring authority does not believe adverse action may result, the matter is returned to the LDI for completion of the inquiry. (Ibid.) If the LDI discovers evidence of staff misconduct which requires investigative skills or resources, the LDI is required to summarize the facts and evidence gathered during the inquiry and refer the matter to AIU for an investigation with notification to the hiring authority. (Ibid.)

Upon completion of an investigation, the LDI must prepare a confidential draft report and submit it to the AIU manager for review and approval. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(3)(B).) During the review, the AIU manager must determine whether the investigation is sufficient, complete, and unbiased. (Cal. Code of Regs., tit. 15, § 3486.2, subd. (c)(4)(A).) Once approved, the report is provided to the hiring authority. (Ibid.) If the hiring authority finds the investigation insufficient to determine a finding for each allegation, the hiring authority must request additional fact gathering. (Ibid.) If the hiring authority finds the investigation sufficient to determine a finding for each allegation, they must do so in accordance with section 3392.1 which specifies the types of findings (i.e., no finding, not sustained, unfounded, exonerated, and sustained). (Ibid.) When a hiring authority finds that an allegation of misconduct is sustained, only corrective action can be imposed unless a request for direct adverse action is approved by OIA. (Cal. Code of Regs., tit. 15, § 3392.1, subd. (c).)

When taking adverse action, the penalty must be imposed consistent with the Employee Disciplinary Matrix. (Cal. Code of Regs., tit. 15, § 3392.3, subd. (b).) Adverse action may only be taken after finding that the allegation of staff misconduct is sustained by a preponderance of the evidence. (Cal. Code of Regs., tit. 15, § 3392.3, subd. (c).) The adverse action penalties are provided in section 3392.4 and include the lowest level of adverse action, a letter of reprimand, to the most serious adverse action, dismissal. Finally, section 3392.5 includes the Employee Disciplinary Matrix that must be followed when imposing an adverse action penalty.

Notices of adverse action and letters of intent must be served on employees prior to the expiration of the applicable statute of limitations as defined in state law. (Cal. Code of Regs., tit. 15, § 3392.6, subd. (a).) A department employee is entitled to contest an adverse action prior to its effective date. (Cal. Code of Regs., tit. 15, § 3392.8, subd. (a).) After the adverse action takes effect, the individual can file an appeal with the State Personnel Board.

1. Sexual Assault Response and Prevention Working Group

The 2023-2024 Budget Act established “a sexual assault response and prevention working group and ambassador program” and allocated funds to CDCR as well as the Sister Warriors Freedom Coalition to support the working group in identifying best practices for whistleblower protections and trauma-informed care and support to survivors. The working group consisted of CDCR leadership and staff, correctional officers, community-based organizations led by formerly incarcerated people, representatives from the Sister Warriors Freedom Coalition, and individuals who have survived sexual assault while in custody. The working group met over a six-month period. Two reports were produced as a result of the working group: one authored by CDCR required by the Budget Act and one authored by the community-based organizations that were members of the working group.

The community report on the working group primarily focused on the women’s prisons, CIW and CCWF. (Sister Warriors Freedom Coalition et al., California Women’s Prisons—Sexual Abuse Response and Prevention Working Group, Community Report to the Legislature (Mar. 2024) available at <https://sisterwarriors.org/prison_sexualassault_report>.) The report made several recommendations fitting into five categories: expedited release of survivors, culture shifting, services for survivors, the investigation and reporting process, and accountability. (Id. at p. 6.) With respect to the investigation and reporting process, the group recommended the following:

• Ensuring privacy in reporting by using locked submission boxes placed next to other existing submission boxes in public areas in common use, away from stations used by custody staff; allowing reporting using non-surveilled email; allowing reporting via private, non-surveilled phone lines; and providing private, non-surveilled spaces where in-person reporting to support professionals can occur.
• Allowing for increased anonymity and confidentiality in reporting.
• Creating an independent reporting process by authorizing the initial handling of reports by an independent, external body; oversight by an independent regulatory system; the creation of a role for independent survivor advocates; the creation of a tracking system of reports; and independent review of staff misconduct investigations by an entity other than CDCR.

(Id. at pp. 37-42.)

The recommendations were designed to increase confidence in reporting misconduct, ensure protection of those reporting from retaliation, and increase staff and department accountability. This bill adopts elements of some of the recommendations related to the investigation and reporting process. Specifically, this bill authorizes the OIG to monitor and investigate all staff misconduct cases and complaints that involve sexual misconduct with an incarcerated person, gives the OIG joint decision-making authority regarding the determination of whether a sexual misconduct complaint is substantiated and the prison’s response to a substantiated sexual misconduct complaint, allows for the submission of a case to the AG’s office for review when the OIG and warden disagree on whether a sexual misconduct complaint is substantiated, and authorizes the AG to investigate a sexual misconduct complaint referred to it and share a recommendation regarding that complaint with CDCR.

1. Argument in Support

A coalition of organizations, including the co-sponsors of the bill, write:

Currently, following internal investigations of employee sexual misconduct, prison wardens have the sole authority to review completed investigation reports, determine the findings of the investigation, and decide on appropriate disciplinary action. This process is fundamentally flawed due to a lack of oversight and an inherent conflict of interest in purely internal investigations. Oversight by the OIG has consistently shown that investigations are frequently lacking or incomplete and that the warden determinations are often inadequate. Decades of sexual misconduct, including recent events at the Central California Women’s Facility (CCWF) and the California Women’s Institute (CIW), have demonstrated that a new process is necessary.

As anti-sexual violence organizations we recognize how pervasive sexual violence is within California detention centers and how urgently survivors need support to recover from their trauma. As advocates for survivors, we want to ensure that they have ample access to options in the aftermath of experiencing violence and this includes security in knowing that multiple parties will be involved in reviewing and investigating employee sexual misconduct cases.

SB 1069 will serve as a short-term fix to CDCR’s current staff sexual misconduct investigation process. It will require CDCR to share decision-making responsibility with the OIG when determining appropriate outcomes for all staff sexual misconduct investigations. If there is disagreement among the shared decision makers, the OIG would prepare a report documenting the disagreement to be submitted to the Secretary of CDCR for final decision and to the Department of Justice for consideration. Granting the OIG investigatory authority will allow for a more meaningful oversight over CDCR’s investigation process.

This bill will build trust in the investigation process, increasing the likelihood that victims will report staff abuse. By ensuring that independent stakeholders are involved in CDCR’s employee sexual misconduct investigations, SB 1069 would address concerns about conflict of interest and increase survivor safety.

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