Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may during that period of confinement be deprived of only those rights as is reasonably related to legitimate penological interests. Existing law enumerates certain civil rights of these prisoners, including the right to purchase, receive, and read newspapers, periodicals, and books accepted for distribution by the United States Post Office.

This bill would include the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear, as specified. The bill would allow these rights to be denied only when in furtherance of a compelling governmental interest with regard to institutional security that may impact the facility, staff, the individual, or others in custody. The bill would require a facility to accommodate these rights in specified ways, including, among others, by allowing the individual to purchase or access facility-issued, or Department of Corrections and Rehabilitation-approved, religious clothing and headwear or, if unavailable, allowing the individual to retain their personal religious clothing and headwear until a facility-issued, or department-approved, clothing or headwear can be accessed or purchased. If purchased by an individual in custody, the bill would require the price of facility-issued, or department-approved, religious clothing and headwear to not exceed the purchase price and normal taxes of the items. The bill would authorize the department to promulgate regulations necessary to implement these religious rights, as specified. The bill would require the sheriff of each county or the administrator of each local detention facility to develop and implement a policy following these requirements on or before January 1, 2025. By imposing duties on local jails, this bill would create a state-mandated local program.

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

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

Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may during that period of confinement be deprived of only those rights as is reasonably related to legitimate penological interests. Existing law enumerates certain civil rights of these prisoners, including the right to purchase, receive, and read newspapers, periodicals, and books accepted for distribution by the United States Post Office.

This bill would include the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear, as specified. The bill would allow these rights to be denied only when in furtherance of a compelling governmental interest with regard to institutional security that may impact the facility, staff, the individual, or others in custody. The bill would require a facility to accommodate these rights in specified ways, including, among others, by allowing the individual to purchase or access facility-issued, or Department of Corrections and Rehabilitation-approved, religious clothing and headwear or, if unavailable, allowing the individual to retain their personal religious clothing and headwear until a facility-issued, or department-approved, clothing or headwear can be accessed or purchased. If purchased by an individual in custody, the bill would require the price of facility-issued, or department-approved, religious clothing and headwear to not exceed the purchase price and normal taxes of the items. The bill would authorize the department to promulgate regulations necessary to implement these religious rights, as specified. The bill would require the sheriff of each county or the administrator of each local detention facility to develop and implement a policy following these requirements on or before January 1, 2025. By imposing duties on local jails, this bill would create a state-mandated local program.

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

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

Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may during that period of confinement be deprived of only those rights as is reasonably related to legitimate penological interests. Existing law enumerates certain civil rights of these prisoners, including the right to purchase, receive, and read newspapers, periodicals, and books accepted for distribution by the United States Post Office.

This bill would include the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear, as specified. The bill would allow these rights to be denied only when it is the least restrictive means of achieving a compelling state in furtherance of a compelling governmental interest in an immediate threat or specific demonstrable security risk to with regard to institutional security that may impact the facility, staff, the individual, or others in custody. The bill would require a facility to accommodate these rights in specified ways, including, among others, by allowing the individual to purchase or access facility-issued facility-issued, or Department of Corrections and Rehabilitation-approved, religious clothing and headwear or, if unavailable, allowing the individual to retain their personal religious clothing and headwear until a facility-issued facility-issued, or department-approved, clothing or headwear can be accessed or purchased. If purchased by an individual in custody, the bill would require the price of facility-issued facility-issued, or department-approved, religious clothing and headwear to not exceed the purchase price and normal taxes of the items. The bill would authorize the department to promulgate regulations necessary to implement these religious rights, as specified. The bill would require the sheriff of each county or the administrator of each local detention facility to develop and implement a policy following these requirements on or before January 1, 2025. By imposing duties on local jails, this bill would create a state-mandated local program.

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

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

Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may during that period of confinement be deprived of only those rights as is reasonably related to legitimate penological interests. Existing law enumerates certain civil rights of these prisoners, including the right to purchase, receive, and read newspapers, periodicals, and books accepted for distribution by the United States Post Office.

This bill would include the right to exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear, religious grooming, clothing, and headwear, as specified. The bill would allow these rights to be denied only when it is the least restrictive means of achieving a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. The bill would require a facility to accommodate these rights in specified ways, including, among others, by providing allowing the individual to purchase or access facility-issued religious garments clothing and headwear or, if unavailable, allow allowing the individual to retain their personal religious garment clothing and headwear until a facility-issued garment becomes available. clothing or headwear can be accessed or purchased. If purchased by an individual in custody, the bill would require the price of facility-issued religious clothing and headwear to not exceed the purchase price and normal taxes of the items. The bill would require the sheriff of each county or the administrator of each local detention facility to develop and implement a policy following these requirements on or before January 1, 2025. By imposing duties on local jails, this bill would create a state-mandated local program.

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

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

Under existing law, a person sentenced to imprisonment in a state prison or in a county jail for a felony offense, as specified, may during that period of confinement be deprived of only those rights as is reasonably related to legitimate penological interests. Existing law enumerates certain civil rights of these prisoners, including the right to purchase, receive, and read newspapers, periodicals, and books accepted for distribution by the United States Post Office.

This bill would include the right to exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear, as specified. The bill would allow these rights to be denied only when it is the least restrictive means of achieving a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. The bill would require a facility to accommodate these rights in specified ways, including, among others, by providing facility-issued religious garments or, if unavailable, allow the individual to retain their personal religious garment until a facility-issued garment becomes available. The bill would require the sheriff of each county or the administrator of each local detention facility to develop and implement a policy following these requirements on or before January 1, 2025. By imposing duties on local jails, this bill would create a state-mandated local program.

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

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

 UNFINISHED BUSINESS  

Bill No: SB 309

Author: Cortese (D), et al.

Amended: 9/7/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/11/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

SENATE FLOOR: 40-0, 5/30/23

AYES: Allen, Alvarado-Gil, Archuleta, 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

ASSEMBLY FLOOR: 80-0, 9/12/23 - See last page for vote

SUBJECT: Correctional facilities: religious accommodations

SOURCE: Council on American-Islamic Relations, California

DIGEST:

This bill establishes the right of an individual in custody of a state or local detention facility to religious accommodation with respect to grooming, clothing, and headwear, at all times and throughout the facility, except as specified; permits the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of furthering specified governmental interests; mandates specific procedures during booking and searches related to religious grooming and garments; and requires each sheriff to develop and implement a religious grooming, clothing, and headwear policy consistent with the mandates outlined in the bill.

Assembly Amendments remove a provision from the bill that would have added the right to exercise religious freedom to the list of codified civil rights held by individuals incarcerated in state prison and county jail for realigned felonies; change the circumstances under which an incarcerated person’s right to religious accommodation may be deprived; make minor changes to some of the bill’s definitions; authorize the California Department of Corrections and Rehabilitation (CDCR) to promulgate regulations necessary to implement provisions of the bill; specify that an incarcerated person who believes their request for religious accommodation has been denied has the right to pursue relief pursuant to federal law; and make other minor changes.

ANALYSIS:

Existing law:

1. Provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Const., 1st Amend.)
2. Provides that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. (42 U.S.C. § 2000cc-1.)
3. Provides that a person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 subdivision (h) may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600, subd. (a).)
4. Provides that each person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 (h) has the following civil rights:
5. To inherit, own, sell, or convey real or personal property, including all written and artistic material produced or created by the person during the period of imprisonment, except as provided. However, CDCR may restrict or prohibit sales or conveyances that are made for business purposes, to the extent authorized under the law.
6. To correspond, confidentially, with any member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
7. To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office, except as specified.
8. To initiate civil actions, as specified.
9. To marry.
10. To create a power of appointment.
11. To make a will.
12. To receive specified benefits. (Pen. Code, § 2601, subd. (a)-(h).)
13. Declares that it is the intent of the Legislature that all incarcerated individuals confined in local detention facilities be afforded reasonable opportunities to exercise religious freedom. Defines “local detention facility” as any city, county, or regional facility used for the confinement of prisoners for more than 24 hours. (Pen. Code, § 4027.)
14. Declares that it is the intent of the Legislature that all incarcerated individuals confined in the state prisons be afforded reasonable opportunities to exercise religious freedom. (Pen. Code, § 5009.)

This bill:

1. Provides that an individual in custody of a state or local detention facility has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility. Provides an exception if the limitation is in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. Authorizes the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests.
2. Requires that a state or local facility do all of the following:
3. Ask each individual during the initial booking, intake, and classification process whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.
4. Requires the facility to allow the individual in custody to purchase facility-issued religious clothing and headwear or provide access, as defined, to facility-issued religious clothing and headwear. Requires the facility, if unavailable, to allow the individual to retain their personal religious clothing and headwear until facility-issued religious clothing and headwear can be accessed or purchased. Prohibits the price of facility-issued religious clothing and headwear from exceeding the purchase price and normal taxes of the item if purchased by an individual in custody.
5. Prohibits the facility from requiring an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and requires that the individual in custody be allowed to maintain their hair and beard length according to their sincerely held religious beliefs.
6. Requires the facility to do all of the following when an individual in custody wearing religious clothing or headwear is searched:
7. Requires that staff offer the individual in custody the opportunity to have this search conducted in a private space out of view of members of the opposite gender.
8. Requires the search, if requested, to be conducted in a private area by staff of the same gender.
9. Requires staff to return to the individual in custody, any religious clothing or headwear purchased, accessed, or retained, following the search.
10. Includes the following definitions:
11. “Access” to facility-issued religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided by facilities.
12. “Individual in custody” means a person confined to a state or local detention facility, including, but not limited to, a person in the booking process; in temporary holding pending release, transfer, or appearance in court; during or awaiting trial proceedings; awaiting arraignment; sentenced to imprisonment; and imprisoned upon conviction.
13. “Local detention facility” means any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.
14. “Religious grooming” includes all forms of head, facial, and body hair that are part of an individual religious observance, and shall be construed broadly.
15. “Religious clothing and headwear” includes, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.
16. Provides that the above listed mandates apply without regard to whether the facility is operated pursuant to a contract with a private contractor and without regard to whether the individual in custody has been charged with or convicted of a crime.
17. Declares that it is the intent of the Legislature that all individuals confined in local detention facilities and state prisons be afforded religious grooming, clothing, and headwear accommodations as outlines above.
18. Requires the sheriff of each county or the administrator of each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility, including, but not limited to, county jails and holding facilities on or before January 1, 2025.
19. Requires that the policy meet the minimum requirements outlined above and be in accordance with accepted best practices.
20. Defines “local detention facility” to mean any city, county, or regional facility used for the confinement of prisoners for more than 24 hours, consistent with the definition found in Section 4027.

Background

Reasonable Opportunities to Exercise Religious Freedom

Penal Code Section 5009 declares the intent of the Legislature that all individuals incarcerated in the state’s prisons be afforded reasonable opportunities to exercise religious freedom. Similar language is codified in Penal Code Section 4027 which pertains to local detention facilities defined as “any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.”

This bill declares the intent of the Legislature that all individuals incarcerated in the state’s prisons and local detention facilities be afforded religious grooming, clothing, and headwear accommodations, as outlined in other provisions of the bill.

Existing CDCR Regulations Related to Religious Property and Grooming

Current CDCR regulations outline the department’s policies regarding religious property. (Cal. Code of Regs., tit. 15, § 3190.) Incarcerated individuals are generally permitted to possess in their quarters or living area, state-issued property items, and authorized personal and religious property items which is based upon privilege group, assigned security level, and/or institution mission. (Cal. Code of Regs., tit. 15, § 3190, subd. (a).) The Religious Personal Property Matrix (RPPM) identifies a list of allowable personal religious property. (Cal. Code of Regs., tit. 15, § 3190, subd. (c).) Regulations specify that local exceptions to the RPPM shall also be identified. (Id.)

The RPPM applies to all incarcerated individuals. (CDCR, Religious Personal Property Matrix (Revised Jan. 1, 2023), p. 1 available at <https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2022/12/Religious_Personal_Property_Matrix_11.28.22.pdf .) The RPPM specifies that religious texts, including but not limited to the Torah, Bible, Quran, and Vedas are authorized for an individual to possess. (Ibid.) The RPPM indicates that incarcerated individuals are permitted to wear personal religious clothing, as specified, but includes several prohibitions, including from possessing, using, creating, or wearing personal religious clothing with hoods, pictures, zippers, inside pockets, wearing items with any design, sign, or symbol associated with a security threat group, and wearing items which are obscene. (Ibid.) All items are required to be gray or white, and multicolored items must have gray or white as the predominant color. (Ibid.)

While not an exhaustive list, incarcerated individuals in Privilege Group A, B, or C are each permitted to possess: two of an item of religious headgear such as a scarf, hijab, yarmulke, or kufi, among others; one altar cloth; two bowls, chalices, or handwashing cups; one prayer shawl; four ounces of prayer oils; one prayer rug or mat; and one set of a religious medallion and chain. (Id. at pp. 3-5.)

Individuals incarcerated in specialized housing units, such as Administrative Segregation, face additional restrictions with respect to which religious items they may possess and the number of items they may possess. (Ibid.) However, determinations concerning religious personal property for these individuals may be made on a case-by-case basis, based on the individual’s behavior, mental health status, and safety or security needs. (Id. at p. 2.) Ultimately, the institution head retains the authority to remove or restrict use of an approved religious item based on a serious threat to facility security or to the safety of the incarcerated population or staff. (Ibid.)

Regulations require that an incarcerated individual’s hair and facial hair be clean, neatly styled, and groomed, when the person is away from the immediate area of the person’s quarters. (Cal. Code of Regs., tit. 15, § 3062, subd. (a).) Regulations further specify that an incarcerated individual’s hair or facial hair may be any length but is prohibited from extending over the eyebrows or covering the person’s face. (Cal. Code of Regs., tit. 15, § 3062, subd. (e).) If hair or facial hair is long, it is required to be worn in a neat, plain style, which does not draw undue attention to the individual. (Ibid.)

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

According to the Assembly Appropriations Committee, costs (local funds, General Fund) of an unknown but potentially significant amount to local detention facilities to provide accommodations for religious hairstyles and facial hair and to develop religious grooming, clothing, and headwear policies if needed. It is unknown whether most local detention facilities already have religious policies that comply with the standards established by this bill. Costs to the General Fund will depend on whether the Commission on State Mandates determines that the duties added by this bill constitute a reimbursable state mandate.

SUPPORT: (Verified 9/12/23)

Council on American-Islamic Relations, California (source)

ACLU California Action

Asian Americans Advancing Justice-Southern California

California Attorneys for Criminal Justice

California Catholic Conference

California Coalition for Women Prisoners

California Immigrant Policy Center

California Public Defenders Association

Church State Council

Ella Baker Center for Human Rights

National Association of Social Workers, California Chapter

Prosecutors Alliance California

Sikh American Legal Defense and Education Fund

Sikh Coalition

St. Vincent De Paul Sacramento, Exodus Project

OPPOSITION: (Verified 9/12/23)

None received

ASSEMBLY FLOOR: 80-0, 9/12/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

Prepared by: Stephanie Jordan / PUB. S. /

9/12/23 19:30:45

**** END ****

SENATE THIRD READING

STR Bill Id:SB 309

Author:(Cortese)

As Amended Ver:September 7, 2023

Majority vote

SUMMARY

Affords the right to a religious accommodation with respect to grooming, religious clothing, and headwear for incarcerated persons.

Major Provisions

1. States that an individual in custody of a state or local detention facility shall have the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except if in furtherance of a compelling governmental interest with regard to institutional security that may impact the facility, staff, the individual, or others in custody.
2. States that religious grooming, clothing, and headwear accommodations shall only be denied when doing so would be the least restrictive means of furthering these interests.
3. Requires state and local detention facilities to do all of the following:
   1. During the initial booking, intake, and classification process, facility staff shall ask each individual entering into their custody whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear;
   2. The facility shall allow the individual in custody to purchase facility-issued religious clothing and headwear or provide access to facility-issued or department-approved religious clothing and headwear, as follows:
      1. Access to facility-issued or department-approved religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided facilities;
      2. If unavailable, the facility shall allow the individual to retain their religious clothing and headwear until facility-issued or department-approved religious clothing and headwear can be accessed or purchased; and,
      3. If purchased by an individual in custody, the price of facility-issued religious clothing and headwear shall not exceed the purchase price and normal taxes of the items.
   3. The facility shall not require an individual's hair or beard be trimmed or cut during the booking, intake, or classification process and shall allow the individual in custody to maintain their hair and beard length according to their sincerely held religious beliefs; and,
   4. Unless exigent circumstances exist, when an individual in custody wearing religious clothing or headwear is searched, the facility shall do all of the following:
      1. Staff shall offer the individual in custody the opportunity to have the search conducted by members of the same gender and out of view of members of a differing gender; and,
      2. Following the search, staff shall return the religious clothing or headwear to the individual in custody, unless there is a reason to confiscate the item due to a security risk, which shall be documented.
4. Provides that CDCR may promulgate regulations as necessary to implement these provisions.
5. Requires, on or before January 1, 2025, each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility in accordance with these provisions. This includes facilities operated under a contract with a private contractor.
6. States that an incarcerated person who believes that their request for a religious accommodation has been denied has the right to pursue relief pursuant to the federal Religious Land Use and Institutionalized Persons Act (RLPUIA).
7. Defines "religious grooming" to include all forms of head, facial, and body hair that are part of an individual religious observance.
8. Defines "religious clothing and headwear" to include a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.

COMMENTS

According to the Author

"We have an opportunity, with this bill, to stop incidents of religious persecution in prison. Californians still maintain their basic civil rights when they become incarcerated. We know from research that inmates who are allowed to freely exercise religious practice and dress are less likely to be involved in violent incidents while they are serving their sentence, and less likely to return to jail or prison after their term is completed. In five communities in California, correctional facilities have had to change their policies related to religious practice following lawsuits. Unfortunately, jail officials have forcibly removed religious headscarves after taking people into custody. Currently, each local detention facility in California is left to adopt its own policies and procedures. SB 309 would create a uniform state policy providing clear guidelines on religious clothing, headwear, and grooming. Muslims, Sikhs, Jews and other religious minorities should preserve their right to religious dress and practice without harm or disruption. This is about preserving dignity and preserving civil rights. When a member of a religious minority is serving time, they should always have the protection to observe their religion."

Arguments in Support

According to the Prosecutors Alliance of California, "Currently, California does not have a consistent or codified statewide policy for prisons and jails that ensures the right to religious clothing, grooming, and headwear accommodations for individuals in their custody. While the California Department of Corrections and Rehabilitation (CDCR) has policies and regulations that touch on the right to certain religious clothing and headwear, they do not meet the heightened protections provided under federal law. The Board of State and Community Corrections (BSCC) provides no guidance for local detention facilities on religious accommodations, leaving it to the discretion of each local detention facility, city, or county to adopt their own policies. As a result, there are inconsistent policies for religious clothing, headwear and grooming from one facility to another leaving many of those incarcerated unprotected and stripped of their right to practice this dimension of their faith."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, Costs (local funds, General Fund) of an unknown but potentially significant amount to local detention facilities to provide accommodations for religious hairstyles and facial hair and to develop religious grooming, clothing, and headwear policies if needed. It is unknown whether most local detention facilities already have religious policies that comply with the standards established by this bill. Costs to the General Fund will depend on whether the Commission on State Mandates determines that the duties added by this bill constitute a reimbursable state mandate.

VOTES

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, 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

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Jackson

ASM APPROPRIATIONS: 16-0-0

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Soria, Weber, Wilson

UPDATED

VERSION: September 7, 2023

CONSULTANT: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0001929

SENATE THIRD READING

STR Bill Id:SB 309

Author:(Cortese)

As Amended Ver:May 18, 2023

Majority vote

SUMMARY

Affords the right to exercise religious freedom to incarcerated persons, including accommodations for religious grooming, clothing, and headwear.

Major Provisions

1. Adds to the list of civil rights afforded to persons sentenced to imprisonment in a state prison or county jail for a felony the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear. This includes the ability to access, or purchase, religious clothing and headwear, not exceeding the purchase price and normal taxes of the item.
2. States that an individual in custody of a state or local detention facility shall have the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except if in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody.
3. States that religious grooming, clothing, and headwear accommodations shall only be denied when doing so would be the least restrictive means of achieving these interests.
4. Requires state and local detention facilities to do all of the following:
   1. During the initial booking, intake, and classification process, facility staff shall ask each individual entering into their custody whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear;
   2. The facility shall allow the individual in custody to purchase facility-issued religious clothing and headwear or provide access to facility-issued religious clothing and headwear, as follows:
      1. Access to facility-issued religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided facilities;
      2. If unavailable, the facility shall allow the individual to retain their personal religious clothing and headwear until a facility-issued religious clothing and headwear can be accessed or purchased; and,
      3. If purchased by an individual in custody, the price of facility-issued religious clothing and headwear shall not exceed the purchase price and normal taxes of the items.
   3. The facility shall not require an individual's hair or beard be trimmed or cut during the booking, intake, or classification process and shall allow the individual in custody to maintain their hair and beard length according to their sincerely held religious beliefs; and,
   4. When an individual in custody wearing religious clothing or headwear is searched, the facility shall do all of the following:
      1. Staff shall offer the individual in custody the opportunity to have the search conducted in a private space out of view of members of the opposite gender;
      2. The search shall, if requested, be conducted in a private area by staff of the same gender; and,
      3. Following the search, staff shall return the religious clothing or headwear to the individual in custody.
5. Requires, on or before January 1, 2025, each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility in accordance with these provisions. This includes facilities operated under a contract with a private contractor.
6. Defines "religious grooming" to include all forms of head, facial, and body hair that are part of an individual religious observance.
7. Defines "religious clothing and headwear" to include, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.

COMMENTS

According to the Author

"We have an opportunity, with this bill, to stop incidents of religious persecution in prison. Californians still maintain their basic civil rights when they become incarcerated. We know from research that inmates who are allowed to freely exercise religious practice and dress are less likely to be involved in violent incidents while they are serving their sentence, and less likely to return to jail or prison after their term is completed. In five communities in California, correctional facilities have had to change their policies related to religious practice following lawsuits. Unfortunately, jail officials have forcibly removed religious headscarves after taking people into custody. Currently, each local detention facility in California is left to adopt its own policies and procedures. SB 309 would create a uniform state policy providing clear guidelines on religious clothing, headwear, and grooming. Muslims, Sikhs, Jews and other religious minorities should preserve their right to religious dress and practice without harm or disruption. This is about preserving dignity and preserving civil rights. When a member of a religious minority is serving time, they should always have the protection to observe their religion."

Arguments in Support

According to the Prosecutors Alliance of California, "Currently, California does not have a consistent or codified statewide policy for prisons and jails that ensures the right to religious clothing, grooming, and headwear accommodations for individuals in their custody. While the California Department of Corrections and Rehabilitation (CDCR) has policies and regulations that touch on the right to certain religious clothing and headwear, they do not meet the heightened protections provided under federal law. The Board of State and Community Corrections (BSCC) provides no guidance for local detention facilities on religious accommodations, leaving it to the discretion of each local detention facility, city, or county to adopt their own policies. As a result, there are inconsistent policies for religious clothing, headwear and grooming from one facility to another leaving many of those incarcerated unprotected and stripped of their right to practice this dimension of their faith."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, Costs (local funds, General Fund) of an unknown but potentially significant amount to local detention facilities to provide accommodations for religious hairstyles and facial hair and to develop religious grooming, clothing, and headwear policies if needed. It is unknown whether most local detention facilities already have religious policies that comply with the standards established by this bill. Costs to the General Fund will depend on whether the Commission on State Mandates determines that the duties added by this bill constitute a reimbursable state mandate.

VOTES

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, 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

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Alanis, Bonta, Bryan, Lackey, Ortega, Santiago, Jackson

ASM APPROPRIATIONS: 16-0-0

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Soria, Weber, Wilson

UPDATED

VERSION: May 18, 2023

CONSULTANT: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0001476

Date of Hearing: August 23, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 309

Author:(Cortese) – As Amended Ver:May 18, 2023

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

SUMMARY:

This bill adds the exercise of religious freedom, including accommodations for grooming and religious clothing and headwear, to the statutory list of an incarcerated person’s civil rights.

The bill specifies related procedures that state and local detention facilities must follow during booking, intake, classification, and searches, and requires, on or before January 1, 2025, each local detention facility to develop and implement a religious grooming, clothing, and headwear policy that meets this bill’s standards.

FISCAL EFFECT:

Costs (local funds, General Fund) of an unknown but potentially significant amount to local detention facilities to provide accommodations for religious hairstyles and facial hair and to develop religious grooming, clothing, and headwear policies if needed. It is unknown whether most local detention facilities already have religious policies that comply with the standards established by this bill. Costs to the General Fund will depend on whether the Commission on State Mandates determines that the duties added by this bill constitute a reimbursable state mandate.

COMMENTS:

1. Purpose. According to the author:

We have an opportunity, with this bill, to stop incidents of religious persecution in prison. Californians still maintain their basic civil rights when they become incarcerated. We know from research that inmates who are allowed to freely exercise religious practice and dress are less likely to be involved in violent incidents while they are serving their sentence, and less likely to return to jail or prison after their term is completed. In five communities in California, correctional facilities have had to change their policies related to religious practice following lawsuits. Unfortunately, jail officials have forcibly removed religious headscarves after taking people into custody. Currently, each local detention facility in California is left to adopt its own policies and procedures. SB 309 would create a uniform state policy providing clear guidelines on religious clothing, headwear, and grooming. Muslims, Sikhs, Jews and other religious minorities should preserve their right to religious dress and practice without harm or disruption.

1. Background. As detailed in the analysis of this bill by the Assembly Committee on Public Safety, this bill is declaratory of existing legal protections for the religious practices of incarcerated people. Federal law prohibits state and local governments from imposing a substantial burden on the religious exercise of an incarcerated person unless the government demonstrates that the burden it imposes furthers a compelling government interest and is the least restrictive way of furthering that interest. This bill codifies this same prohibition in state law by adding the exercise of religious freedom, including accommodations, for religious grooming, clothing, and headwear, to the list of civil rights enumerated for incarcerated people in the California Penal Code.

The policies of the California Department of Corrections and Rehabilitation (CDCR) regarding religious property and observance of incarcerated people are outlined in CDCR’s regulations. The regulations identify a list of personal religious property that an incarcerated person may possess, including religious texts, clothing, headgear, and other personal items. Access to religious items in CDCR facilities depends on an incarcerated person’s privilege group and whether they are housed in a specialized housing unit like Administrative Segregation. Determinations about an incarcerated person’s religious property are made on a case-by-case basis, and the head of each CDCR institution retains authority to remove or restrict access to an approved religious item based on a security or safety threat.

Local detention facilities are governed by the regulations of the Board of State and Community Corrections, which are less prescriptive and only require facility administrators to “develop written policies and procedures to provide opportunities for incarcerated persons to participate in religious services, practices, and counseling on a voluntary basis.” This bill requires each local detention facility, including specified private detention facilities, to develop policies that meet the religious accommodation standards established by this bill.

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

Date of Hearing: June 27, 2023

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 309

Author:(Cortese) – As Amended Ver:May 18, 2023

SUMMARY: Affords the right to exercise religious freedom to incarcerated persons, including accommodations for religious grooming, clothing, and headwear. Specifically, this bill:

1. Adds to the list of civil rights afforded to persons sentenced to imprisonment in a state prison or county jail for a felony the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear. This includes the ability to access, or purchase, religious clothing and headwear, not exceeding the purchase price and normal taxes of the item.
   
2. States that an individual in custody of a state or local detention facility shall have the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except if in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody.
   
3. States that religious grooming, clothing, and headwear accommodations shall only be denied when doing so would be the least restrictive means of achieving these interests.
   
4. Requires state and local detention facilities to do all of the following:
   
   1. During the initial booking, intake, and classification process, facility staff shall ask each individual entering into their custody whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear;
      
   2. The facility shall allow the individual in custody to purchase facility-issued religious clothing and headwear or provide access to facility-issued religious clothing and headwear, as follows:
      
      1. Access to facility-issued religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided facilities;
         
      2. If unavailable, the facility shall allow the individual to retain their personal religious clothing and headwear until a facility-issued religious clothing and headwear can be accessed or purchased; and,
         
      3. If purchased by an individual in custody, the price of facility-issued religious clothing and headwear shall not exceed the purchase price and normal taxes of the items.
         
   3. The facility shall not require an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and shall allow the individual in custody to maintain their hair and beard length according to their sincerely held religious beliefs; and,
      
   4. When an individual in custody wearing religious clothing or headwear is searched, the facility shall do all of the following:
      
      1. Staff shall offer the individual in custody the opportunity to have the search conducted in a private space out of view of members of the opposite gender;
         
      2. The search shall, if requested, be conducted in a private area by staff of the same gender; and,
         
      3. Following the search, staff shall return the religious clothing or headwear to the individual in custody.
         
5. Requires, on or before January 1, 2025, each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility in accordance with these provisions. This includes facilities operated under a contract with a private contractor.
   
6. Defines “religious grooming” to include all forms of head, facial, and body hair that are part of an individual religious observance.
   
7. Defines “religious clothing and headwear” to include, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.
   

EXISTING FEDERAL LAW:

1. Provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (U.S. Const., 1st Amend.)
   
2. Guarantees the free exercise and enjoyment of religion without discrimination or preference. (Cal. Const., art. I, § 4.)
   
3. Establishes the Religious Land Use and Institutionalized Persons Act (RLUIPA) which prohibits state and local governments from imposing a substantial burden on the religious exercise of a person confined in a correctional institution, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling governmental interest. (42 U.S.C. § 2000cc–3(c).)
   

EXISTING STATE LAW:

1. States the intention of the Legislature that all prisoners confined in state and local detention facilities shall be afforded reasonable opportunities to exercise religious freedom. (Pen. Code, §§ 4027 & 5009.)
   
2. Provides that a person sentenced to imprisonment in a state prison or county jail for a felony may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600, subd. (a).)
   
3. Provides that each person sentenced to imprisonment in a state prison or to imprisonment in a county jail for a felony has the following civil rights:
   
   1. To inherit, own, sell, or convey real or personal property;
      
   2. To correspond, confidentially, with any member of the State Bar or holder of public office;
      
   3. To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office, except as specified;
      
   4. To initiate civil actions, as specified;
      
   5. To marry;
      
   6. To create a power of appointment;
      
   7. To make a will; and,
      
   8. To receive specified benefits. (Pen. Code, § 2601, subds. (a)-(h).)
      
4. Prohibits male correctional officers from conducting a pat down search of a female incarcerated person unless the person presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search. (Pen. Code, § 2644.)
   

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, “We have an opportunity, with this bill, to stop incidents of religious persecution in prison. Californians still maintain their basic civil rights when they become incarcerated. We know from research that inmates who are allowed to freely exercise religious practice and dress are less likely to be involved in violent incidents while they are serving their sentence, and less likely to return to jail or prison after their term is completed. In five communities in California, correctional facilities have had to change their policies related to religious practice following lawsuits. Unfortunately, jail officials have forcibly removed religious headscarves after taking people into custody. Currently, each local detention facility in California is left to adopt its own policies and procedures. SB 309 would create a uniform state policy providing clear guidelines on religious clothing, headwear, and grooming. Muslims, Sikhs, Jews and other religious minorities should preserve their right to religious dress and practice without harm or disruption. This is about preserving dignity and preserving civil rights. When a member of a religious minority is serving time, they should always have the protection to observe their religion.”
   
2. Codified Civil Rights: Penal Code section 2601 provides that each person serving a sentence in state prison or county jail for a realigned felony has specified civil rights, including the right to inherit, own, sell, or convey real or personal property, the right to correspond confidentially with any member of the State Bar or public office, the right to marry, and the right to make a will, among others. Penal Code section 2600 provides that a person serving a sentence in state prison or county jail for a realigned felony may be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.
   

This bill would add the right to exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear to the list of enumerated civil rights.

In addition, Penal Code section 5009 declares the intent of the Legislature that all individuals incarcerated in the state’s prisons be afforded reasonable opportunities to exercise religious freedom. Similar language is codified in Penal Code section 4027 which pertains to local detention facilities. This bill further specifies the intent of the Legislature that all individuals incarcerated in the state’s prisons and local detention facilities be afforded religious grooming, clothing, and headwear accommodations.

1. This Bill is Largely Declaratory of Existing Law: Under federal law, the Religious Land Use and Institutionalized Persons Act (RLUIPA) protects the religious rights of all persons “residing in or confined to an institution” including state and local government mental health facilities, correctional facilities, pretrial detention facilities, and juvenile detention facilities, and private prisons and jails that operated on behalf of states or local governments. (42 U.S.C. § 2000cc–3(c).)

Under RLUIPA, state and local governments are prohibited from imposing a substantial burden on the religious exercise of a person confined in a correctional institution, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling government interest and is the least restrictive means of furthering that compelling governmental interest. (42 U.S.C. § 2000cc–3(c).)

In Holt v. Hobbs (2015) 574 U.S. 352, the first Supreme Court case directly interpreting RLUIPA’s substantive provisions, the Supreme Court affirmed that the strict scrutiny analysis required by the statute is “exceptionally demanding” and that the protection it affords is “expansive.” (Id. at p. 353.) The petitioner in Holt was a Muslim prisoner who challenged the Arkansas Department of Corrections’ grooming policy, which prohibited beards and provided no exceptions for requests based on religion. (Ibid.) The Supreme Court found that the grooming policy violated RLUIPA because Arkansas failed to prove that prohibiting beards was the least restrictive means to further its interests in (1) preventing prisoners from hiding contraband and (2) quickly and reliably identifying prisoners. (Ibid.) The Court found that there were less restrictive means to further these interests. Holt makes clear that courts should not accept prison administrators’ broad statements about governmental interests as a basis for denying religious accommodations.

In large part, this bill is declaratory of existing law. This bill would prohibit state and local governments from depriving incarcerated persons of their right to religious grooming, religious clothing, and headwear unless there is a compelling state interest interests and such right shall only be denied when doing so would be the least restrictive means of achieving these interests. This is the same exacting standard already required of state and local correctional facilities pursuant to RLUIPA.

1. Existing Regulations: Current CDCR regulations outline the department’s policies regarding religious property. (Cal. Code of Regs., tit. 15, § 3190.) Incarcerated individuals are generally permitted to possess in their quarters or living area, state-issued property items, and authorized personal and religious property items, based upon privilege group, assigned security level, and/or institution mission. (Cal. Code of Regs., tit. 15, § 3190, subd. (a).) The Religious Personal Property Matrix (RPPM) identifies a list of allowable personal religious property. (Cal. Code of Regs., tit. 15, § 3190, subd. (c).) Regulations specify that local exceptions to the RPPM shall also be identified. (Ibid.)

The RPPM applies to all incarcerated individuals. (CDCR, Religious Personal Property Matrix (Jan. 1, 2023) at p. 1 <https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2022/12/Religious_Personal_Property_Matrix_11.28.22.pdf> [June 12, 2023].) The RPPM specifies that religious texts, including but not limited to the Torah, Bible, Quran, and Vedas are authorized for an individual to possess. (Ibid.) The RPPM indicates that incarcerated individuals are permitted to wear personal religious clothing, as specified, but includes several prohibitions, including from possessing, using, creating, or wearing personal religious clothing with hoods, pictures, zippers, inside pockets, wearing items with any design, sign, or symbol associated with a security threat group, and wearing obscene items. (Ibid.) All items are required to be gray or white, and multicolored items must have gray or white as the predominant color. (Ibid.)

While not an exhaustive list, incarcerated individuals in Privilege Group A, B, or C are each permitted to possess: two of an item of religious headgear such as a scarf, hijab, yarmulke, or kufi, among others; one altar cloth; two bowls, chalices, or handwashing cups; one prayer shawl; four ounces of prayer oils; one prayer rug or mat; and one set of a religious medallion and chain. (Id. at pp. 3-5.)

Individuals incarcerated in specialized housing units at CDCR, such as Administrative Segregation, face additional restrictions with respect to which religious items they may possess and the number of items they may possess. (Ibid.) However, determinations concerning religious personal property for these individuals may be made on a case-by-case basis, based on the individual’s behavior, mental health status, and safety or security needs. (Id., at p. 2.) Ultimately, the institution head retains the authority to remove or restrict use of an approved religious item based on a serious threat to facility security or to the safety of the incarcerated population or staff. (Ibid.)

Regulations require that an incarcerated individual’s hair and facial hair be clean, neatly styled, and groomed, when the person is away from the immediate area of the person’s quarters. (Cal. Code of Regs., tit. 15, § 3062, subd. (a).) Regulations further specify that an incarcerated individual’s hair or facial hair may be any length but is prohibited from extending over the eyebrows or covering the person’s face. (Cal. Code of Regs., tit. 15, § 3062, subd. (e).) If hair or facial hair is long, it is required to be worn in a neat, plain style, which does not draw undue attention to the individual. (Ibid.)

For local detention facilities, Board of State and Community Corrections regulations are less prescriptive and only require facility administrators to “develop written policies and procedures to provide opportunities for incarcerated persons to participate in religious services, practices, and counseling on a voluntary basis.” (Cal. Code Regs., tit. 15 § 1072.)

1. Argument in Support: According to the Prosecutors Alliance of California, “Currently, California does not have a consistent or codified statewide policy for prisons and jails that ensures the right to religious clothing, grooming, and headwear accommodations for individuals in their custody. While the California Department of Corrections and Rehabilitation (CDCR) has policies and regulations that touch on the right to certain religious clothing and headwear, they do not meet the heightened protections provided under federal law. The Board of State and Community Corrections (BSCC) provides no guidance for local detention facilities on religious accommodations, leaving it to the discretion of each local detention facility, city, or county to adopt their own policies. As a result, there are inconsistent policies for religious clothing, headwear and grooming from one facility to another leaving many of those incarcerated unprotected and stripped of their right to practice this dimension of their faith.”
   
2. Related Legislation: AB 958 (Santiago), would make the right to personal visits for incarcerated persons a civil right. AB 958 is pending in Senate Public Safety Committee.
   

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
Asian Americans Advancing Justice-southern California
California Attorneys for Criminal Justice
California Catholic Conference
California Coalition for Women Prisoners
California Immigrant Policy Center
California Public Defenders Association
Church State Council
Council on American-islamic Relations, California
Ella Baker Center for Human Rights
Hadassah
Jewish Center for Justice
Jewish Community Relations Council of Sacramento
Jewish Community Relations Council of Silicon Valley
Jewish Democratic Club of Silicon Valley
Jewish Democratic Club of Solano County
Jewish Family & Children's Service of Long Beach and Orange County
Jewish Family & Community Services East Bay
Jewish Family Service San Diego
Jewish Family Services of Silicon Valley
Jewish Federation of Greater Santa Barbara
Jewish Federation of The Greater San Gabriel and Pomona Valleys
Jewish Federation of The Sacramento Region
Jewish Long Beach
Jewish Public Affairs Committee
National Association of Social Workers, California Chapter
Progressive Zionists of California
Prosecutors Alliance California
Secure Justice
Sikh American Legal Defense and Education Fund (SALDEF)
Sikh Coalition
St. Vincent De Paul Sacramento, Exodus Project

Opposition

None Submitted.

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 309

Author: Cortese (D), et al.

Introduced: 5/18/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/11/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/18/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

SUBJECT: Correctional facilities: religious accommodations

SOURCE: Council on American- Islamic Relations, California

DIGEST:

This bill adds the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear, to the list of codified civil rights held by individuals incarcerated in state prison and county jail for realigned felonies; establishes the right of an individual in custody of a state or local detention facility to religious accommodation with respect to grooming, clothing, and headwear, at all times and throughout the facility except in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody; permits the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests; mandates specific procedures during booking and searches related to religious grooming and garments; and requires each sheriff to develop and implement a religious grooming, clothing, and headwear policy consistent with the mandates outlined in the bill.

ANALYSIS:

Existing law:

1. Provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Const., 1st Amend.)
2. Provides that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. (42 U.S.C. § 2000cc-1.)
3. Provides that a person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 subdivision (h) may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600, subd. (a).)
4. Provides that each person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 (h) has the following civil rights:
5. To inherit, own, sell, or convey real or personal property, including all written and artistic material produced or created by the person during the period of imprisonment, except as provided. However, CDCR may restrict or prohibit sales or conveyances that are made for business purposes, to the extent authorized under the law.
6. To correspond, confidentially, with any member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
7. To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office, except as specified.
8. To initiate civil actions, as specified.
9. To marry.
10. To create a power of appointment.
11. To make a will.
12. To receive specified benefits. (Pen. Code, § 2601, subd. (a)-(h).)
13. Declares that it is the intent of the Legislature that all incarcerated individuals confined in local detention facilities be afforded reasonable opportunities to exercise religious freedom. Defines “local detention facility” as any city, county, or regional facility used for the confinement of prisoners for more than 24 hours. (Pen. Code, § 4027.)
14. Declares that it is the intent of the Legislature that all incarcerated individuals confined in the state prisons be afforded reasonable opportunities to exercise religious freedom. (Pen. Code, § 5009.)

This bill:

1. Adds the following to the list of codified civil rights: exercise religious freedom, including accommodations for religious grooming, clothing, and headwear. Specifies that this right includes the ability to access, as defined, or purchase, religious clothing and headwear, not exceeding the purchase price and normal taxes of the item.
2. Provides that an individual in custody of a state or local detention facility has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility. Provides an exception if the limitation is in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. Authorizes the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests.
3. Requires that a state or local facility do all of the following:
4. Ask each individual during the initial booking, intake, and classification process whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.
5. Requires the facility to allow the individual in custody to purchase facility-issued religious clothing and headwear or provide access, as defined, to facility-issued religious clothing and headwear. Requires the facility, if unavailable, to allow the individual to retain their personal religious clothing and headwear until facility-issued religious clothing and headwear can be accessed or purchased. Prohibits the price of facility-issued religious clothing and headwear from exceeding the purchase price and normal taxes of the item if purchased by an individual in custody.
6. Prohibits the facility from requiring an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and requires that the individual in custody be allowed to maintain their hair and beard length according to their sincerely held religious beliefs.
7. Requires the facility to do all of the following when an individual in custody wearing religious clothing or headwear is searched:
8. Requires that staff offer the individual in custody the opportunity to have this search conducted in a private space out of view of members of the opposite gender.
9. Requires the search, if requested, to be conducted in a private area by staff of the same gender.
10. Requires staff to return to the individual in custody, any religious clothing or headwear purchased, accessed, or retained, following the search.
11. Includes the following definitions:
12. “Access” to facility-issued religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided by facilities.
13. “Individual in custody” means a person confined to a state or local detention facility, including, but not limited to, a person in the booking process; in temporary holding pending release, transfer, or appearance in court; during or awaiting trial proceedings; awaiting arraignment; sentenced to imprisonment; and imprisoned upon conviction.
14. “Local detention facility” means any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.
15. “Religious grooming” includes all forms of head, facial, and body hair that are part of an individual religious observance, and shall be construed broadly.
16. “Religious clothing and headwear” includes, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.
17. Provides that the above listed mandates apply without regard to whether the facility is operated pursuant to a contract with a private contractor and without regard to whether the individual in custody has been charged with or convicted of a crime.
18. Declares that it is the intent of the Legislature that all individuals confined in local detention facilities and state prisons be afforded religious grooming, clothing, and headwear accommodations as outlines above.
19. Requires the sheriff of each county or the administrator of each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility, including, but not limited to, county jails and holding facilities on or before January 1, 2025.
20. Requires that the policy meet the minimum requirements outlined above and be in accordance with accepted best practices.
21. Defines “local detention facility” to mean any city, county, or regional facility used for the confinement of prisoners for more than 24 hours, consistent with the definition found in Section 4027.

Background

Codified Civil Rights

Penal Code section 2601 provides that each person serving a sentence in state prison or county jail for a realigned felony has specified civil rights, including the right to inherit, own, sell, or convey real or personal property, the right to correspond confidentially with any member of the State Bar or public office, the right to marry, and the right to make a will, among others. Penal Code section 2600 provides that a person serving a sentence in state prison or county jail for a realigned felony may be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.

This bill adds the right to exercise religious freedom, including accommodations for religious grooming, clothing, and headwear, to the list of enumerated civil rights.

Reasonable Opportunities to Exercise Religious Freedom

Penal Code section 5009 declares the intent of the Legislature that all individuals incarcerated in the state’s prisons be afforded reasonable opportunities to exercise religious freedom. Similar language is codified in Penal Code section 4027 which pertains to local detention facilities defined as “any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.”

This bill declares the intent of the Legislature that all individuals incarcerated in the state’s prisons and local detention facilities be afforded religious grooming, clothing, and headwear accommodations, as outlined in other provisions of the bill.

Existing CDCR Regulations Related to Religious Property and Grooming

Current CDCR regulations outline the department’s policies regarding religious property. (Cal. Code of Regs., tit. 15, § 3190.) Incarcerated individuals are generally permitted to possess in their quarters or living area, state-issued property items, and authorized personal and religious property items which is based upon privilege group, assigned security level, and/or institution mission. (Cal. Code of Regs., tit. 15, § 3190, subd. (a).) The Religious Personal Property Matrix (RPPM) identifies a list of allowable personal religious property. (Cal. Code of Regs., tit. 15, § 3190, subd. (c).) Regulations specify that local exceptions to the RPPM shall also be identified. (Id.)

The RPPM applies to all incarcerated individuals. (CDCR, Religious Personal Property Matrix (Revised Jan. 1, 2023), p. 1 available at <https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites

/171/2022/12/Religious_Personal_Property_Matrix_11.28.22.pdf .) The RPPM specifies that religious texts, including but not limited to the Torah, Bible, Quran, and Vedas are authorized for an individual to possess. (Ibid.) The RPPM indicates that incarcerated individuals are permitted to wear personal religious clothing, as specified, but includes several prohibitions, including from possessing, using, creating, or wearing personal religious clothing with hoods, pictures, zippers, inside pockets, wearing items with any design, sign, or symbol associated with a security threat group, and wearing items which are obscene. (Ibid.) All items are required to be gray or white, and multicolored items must have gray or white as the predominant color. (Ibid.)

While not an exhaustive list, incarcerated individuals in Privilege Group A, B, or C are each permitted to possess: two of an item of religious headgear such as a scarf, hijab, yarmulke, or kufi, among others; one altar cloth; two bowls, chalices, or handwashing cups; one prayer shawl; four ounces of prayer oils; one prayer rug or mat; and one set of a religious medallion and chain. (Id. at pp. 3-5.)

Individuals incarcerated in specialized housing units, such as Administrative Segregation, face additional restrictions with respect to which religious items they may possess and the number of items they may possess. (Ibid.) However, determinations concerning religious personal property for these individuals may be made on a case-by-case basis, based on the individual’s behavior, mental health status, and safety or security needs. (Id. at p. 2.) Ultimately, the institution head retains the authority to remove or restrict use of an approved religious item based on a serious threat to facility security or to the safety of the incarcerated population or staff. (Ibid.)

Regulations require that an incarcerated individual’s hair and facial hair be clean, neatly styled, and groomed, when the person is away from the immediate area of the person’s quarters. (Cal. Code of Regs., tit. 15, § 3062, subd. (a).) Regulations further specify that an incarcerated individual’s hair or facial hair may be any length but is prohibited from extending over the eyebrows or covering the person’s face. (Cal. Code of Regs., tit. 15, § 3062, subd. (e).) If hair or facial hair is long, it is required to be worn in a neat, plain style, which does not draw undue attention to the individual. (Ibid.)

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

According to the Senate Appropriations Committee:

Unknown, potentially reimbursable costs to local sheriffs and jail administrators in order to provide accommodations for traditional religious hairstyles and facial hair (local funds, General Fund). General Fund costs will depend on whether SB 309 creates a reimbursable state mandate as determined by the Commission on State Mandates.

SUPPORT: (Verified 5/18/23)

Council on American-Islamic Relations, California (source)

ACLU California Action

Asian Americans Advancing Justice-Southern California

California Attorneys for Criminal Justice

California Catholic Conference

California Coalition for Women Prisoners

California Immigrant Policy Center

California Public Defenders Association

Church State Council

Ella Baker Center for Human Rights

National Association of Social Workers, California Chapter

Prosecutors Alliance California

Sikh American Legal Defense and Education Fund

Sikh Coalition

St. Vincent De Paul Sacramento, Exodus Project

OPPOSITION: (Verified 5/18/23)

None received

Prepared by: Stephanie Jordan / PUB. S. /

5/23/23 13:07:57

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 309 (Cortese) - Correctional facilities: religious accommodations

Bill Summary:

SB 309 would provide that an individual in custody of a state or local detention facility shall have the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except as specified.

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

The following information is revised to reflect amendments

adopted by the committee on May 18, 2023

Fiscal Impact:

Unknown, potentially reimbursable costs to local sheriffs and jail administrators in order to provide accommodations for traditional religious hairstyles and facial hair (local funds, General Fund). General Fund costs will depend on whether SB 309 creates a reimbursable state mandate as determined by the Commission on State Mandates.

Author Amendments:

• Eliminate the requirement that detention facilities provide religious garments and instead allow persons to have “access” religious garments either by purchasing them or retaining their own.
• Specify that “access” to facility-issued religious clothing and headwear includes, but is not limited to, making available items received by outside donations, or items already issued or provided facilities.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 309 (Cortese) - Correctional facilities: religious accommodations

Bill Summary:

SB 309 would provide that an individual in custody of a state or local detention facility shall have the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except as specified.

Fiscal Impact:

• CDCR: Staff notes potentially significant, ongoing costs to the Department of Corrections and Rehabilitation (CDCR), possibly in the high hundreds of thousands to low millions of dollars in order to provide religious clothing and headwear to those who desire them cannot afford them (General Fund).
• Local Detention Facilities: Unknown, potentially reimbursable costs to local sheriffs and jail administrators in order to provide inmates with religious clothing, headwear and garments, as well as accommodations for traditional religious hairstyles and facial hair (local funds, General Fund). General Fund costs will depend on whether SB 309 creates a reimbursable state mandate as determined by the Commission on State Mandates.

Background:

Existing law provides that each person serving a sentence in state prison or county jail for a realigned felony has specified civil rights, including the right to inherit, own, sell, or convey real or personal property, the right to correspond confidentially with any member of the State Bar or public office, the right to marry, and the right to make a will, among others. Existing law further states that that a person serving a sentence in state prison or county jail for a realigned felony may be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.

Current CDCR regulations outline the department’s policies regarding religious property. Incarcerated individuals are generally permitted to possess in their quarters or living area, state-issued property items, and authorized personal and religious property items which is based upon privilege group, assigned security level, and/or institution mission. The Religious Personal Property Matrix (RPPM) identifies a list of allowable personal religious property. Regulations specify that local exceptions to the RPPM shall also be identified.

The RPPM applies to all incarcerated individuals and specifies that religious texts, including but not limited to the Torah, Bible, Quran, and Vedas are authorized for an individual to possess. The RPPM indicates that incarcerated individuals are permitted to wear personal religious clothing, as specified, but includes several prohibitions, including from possessing, using, creating, or wearing personal religious clothing with hoods, pictures, zippers, inside pockets, wearing items with any design, sign, or symbol associated with a security threat group, and wearing items which are obscene. All items are required to be gray or white, and multicolored items must have gray or white as the predominant color.

Depending on where person is housed and their level of privilege, a person is permitted to possess religious clothing and items such as a scarf, hijab, yarmulke, or kufi, altar cloth, bowls, chalices, or handwashing cups, a prayer shawl, prayer oils, a prayer rug or mat, or a religious medallion and chain. Incarcerated persons in specialized housing units face additional restrictions and determinations concerning religious personal property for these individuals may be made on a case-by-case basis.

Proposed Law:

• Adds the exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear to the list of prisoner’s civil rights.
• Provides that an individual in custody of a state or local detention facility has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility.
• Provides an exception if the limitation is in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. Authorizes the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests.
• Requires that a state or local facility do all of the following:
  • Ask each individual during the initial booking, intake, and classification process whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.
  • Requires the facility to provide the individual with a facility-issued religious garment or, if unavailable, allow the individual to retain their personal religious garment until a facility-issued garment becomes available. Allows the cost to be charged to the individual in custody when the facility provides the individual with a facility-issued religious garment.
  • Prohibits the facility from requiring an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and requires that the individual in custody be allowed to maintain their hair and beard length according to their sincerely held religious beliefs.
• Requires the facility to do all of the following when an individual in custody wearing a religious garment is searched:
  • Requires that staff offer the individual in custody the opportunity to have this search conducted in a private space out of view of members of the opposite gender.
  • Requires the search, if requested, to be conducted in a private area by staff of the same gender.
  • Requires staff to provide the individual with a facility-issued garment following the search.
  • Permits the individual to retain their personal religious garment if a facility-issued garment is unavailable.
• Requires that the individual be provided access to facility-issued garments that fully cover their arms and legs if the religion of an individual in custody requires that their arms and legs be covered.
• Requires the sheriff of each county or the administrator of each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility, including, but not limited to, county jails and holding facilities on or before January 1, 2025.
• Defines terms for purposes of the bill.

Related Legislation:

• SB 1008 (Becker) Ch. 827, Stats. 2022, required each state prison and youth detention facility, county jail, city jail, and county youth detention facility to offer free voice communication services, imposed a daily 60-minute access to voice communication requirement, and prohibited government agencies from generating revenue from those communication services contracts.
• SB 1371 (Bradford, 2022) would have required CDCR to adopt a five-year implementation schedule to increase the wages of individuals incarcerated in the state’s prisons. SB 1371 was vetoed.
• ACA 3 (Kamlager, 2022) would have removed language in the state Constitution that allows involuntary servitude as punishment for a crime. ACA 3 failed passage on the Senate Floor.

Staff Comments:

SB 309 would require CDCR and local detention facilities to inquire whether an inmate has a sincerely held religious belief, and if so, whether they request an accommodation for religious clothing, headwear, or grooming. If the person claims such a belief and requests a clothing or headwear accommodation, then the facility must either provide a facility-issued garment or allow the person to retain their own garment until one becomes available. Current regulations provide for specific inmate attire and require religious items to be purchased at the expense of the individual requestor. Given that this bill adds religious clothing accommodations to the list of prisoner’s civil rights, it may require CDCR to provide the items, even if the person is unable to pay for them. Similarly, local detention facilities may be required to provide clothing and religious items for individuals who are indigent. A number of legislative measures that illuminate the financial difficulties of incarcerated persons, particular those in state prison, have been recently introduced (see Related Legislation, above).

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 309 Hearing Date: April 11, 2023

Subject: Correctional facilities: religious accommodations

HISTORY

Source: Council on American-Islamic Relations, California

Prior Legislation: None known

Support: ACLU California Action; California Attorneys for Criminal Justice; California Catholic Conference; California Coalition for Women Prisoners; California Immigrant Policy Center; California Public Defenders Association; Church State Council; Ella Baker Center for Human Rights; National Association of Social Workers, California Chapter; Sikh Coalition; St. Vincent De Paul Sacramento, Exodus Project

Opposition: None known

PURPOSE

The purpose of this bill is to: 1) add the right to exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear, to the list of codified civil rights held by individuals incarcerated in state prison and county jail for realigned felonies; 2) establish the right of an individual in custody of a state or local detention facility to religious accommodation with respect to grooming, clothing, and headwear, at all times and throughout the facility except in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody; 3) permit the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests; 4) mandate specific procedures during booking and searches related to religious grooming and garments; and 5) require each sheriff to develop and implement a religious grooming, clothing, and headwear policy consistent with the mandates outlined in the bill.

Existing federal constitutional law provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Const., 1st Amend.)

Existing federal law, the Religious Land Use and Institutionalized Persons Act, provides that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. (42 U.S.C. § 2000cc-1.)

Existing law provides that a person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 subdivision (h) may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600, subd. (a).)

Existing law provides that each person sentenced to imprisonment in a state prison or to imprisonment pursuant to Section 1170 (h) has the following civil rights:

• To inherit, own, sell, or convey real or personal property, including all written and artistic material produced or created by the person during the period of imprisonment, except as provided. However, CDCR may restrict or prohibit sales or conveyances that are made for business purposes, to the extent authorized under the law.
• To correspond, confidentially, with any member of the State Bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
• To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office, except as specified.
• To initiate civil actions, as specified.
• To marry.
• To create a power of appointment.
• To make a will.
• To receive specified benefits. (Pen. Code, § 2601, subd. (a)-(h).)

Existing law declares that it is the intent of the Legislature that all incarcerated individuals confined in local detention facilities be afforded reasonable opportunities to exercise religious freedom. Defines “local detention facility” as any city, county, or regional facility used for the confinement of prisoners for more than 24 hours. (Pen. Code, § 4027.)

Existing law declares that it is the intent of the Legislature that all incarcerated individuals confined in the state prisons be afforded reasonable opportunities to exercise religious freedom. (Pen. Code, § 5009.)

This bill adds the following to the list of codified civil rights: exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear.

This bill provides that an individual in custody of a state or local detention facility has the right to religious accommodation with respect to grooming, religious clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility. Provides an exception if the limitation is in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. Authorizes the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests.

This bill requires that a state or local facility do all of the following:

• Ask each individual during the initial booking, intake, and classification process whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.
• Requires the facility to provide the individual with a facility-issued religious garment or, if unavailable, allow the individual to retain their personal religious garment until a facility-issued garment becomes available. Allows the cost to be charged to the individual in custody when the facility provides the individual with a facility-issued religious garment.
• Prohibits the facility from requiring an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and requires that the individual in custody be allowed to maintain their hair and beard length according to their sincerely held religious beliefs.

This bill requires the facility to do all of the following when an individual in custody wearing a religious garment is searched:

• Requires that staff offer the individual in custody the opportunity to have this search conducted in a private space out of view of members of the opposite gender.
• Requires the search, if requested, to be conducted in a private area by staff of the same gender.
• Requires staff to provide the individual with a facility-issued garment following the search.
• Permits the individual to retain their personal religious garment if a facility-issued garment is unavailable.

This bill requires that the individual be provided access to facility-issued garments that fully cover their arms and legs if the religion of an individual in custody requires that their arms and legs be covered.

This bill includes the following definitions:

• “Individual in custody” means a person confined to a state or local detention facility, including, but not limited to, a person in the booking process; in temporary holding pending release, transfer, or appearance in court; during or awaiting trial proceedings; awaiting arraignment; sentenced to imprisonment; and imprisoned upon conviction.
• “Local detention facility” means any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.
• “Religious grooming” includes all forms of head, facial, and body hair that are part of an individual religious observance, and shall be construed broadly.
• “Religious clothing and headwear” includes, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.

This bill provides that the above listed mandates apply without regard to whether the facility is operated pursuant to a contract with a private contractor and without regard to whether the individual in custody has been charged with or convicted of a crime.

This bill declares that it is the intent of the Legislature that all individuals confined in local detention facilities and state prisons be afforded religious grooming, clothing, and headwear accommodations as outlines above.

This bill requires the sheriff of each county or the administrator of each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility, including, but not limited to, county jails and holding facilities on or before January 1, 2025.

This bill requires that the policy meet the minimum requirements outlined above and be in accordance with accepted best practices.

This bill defines “local detention facility” to mean any city, county, or regional facility used for the confinement of prisoners for more than 24 hours, consistent with the definition found in Section 4027.

COMMENTS

1. Need For This Bill

According to the author:

We have an opportunity, with this bill, to stop incidents of religious persecution in prison. Californians still maintain their basic civil rights when they become incarcerated. We know from research that inmates who are allowed to freely exercise religious practice and dress are less likely to be involved in violent incidents while they are serving their sentence, and less likely to return to jail or prison after their term is completed. In five communities in California, correctional facilities have had to change their policies related to religious practice following lawsuits. Unfortunately, jail officials have forcibly removed religious headscarves after taking people into custody. Currently, each local detention facility in California is left to adopt its own policies and procedures. SB 309 would create a uniform state policy providing clear guidelines on religious clothing, headwear, and grooming. Muslims, Sikhs, Jews and other religious minorities should preserve their right to religious dress and practice without harm or disruption. This is about preserving dignity and preserving civil rights. When a member of a religious minority is serving time, they should always have the protection to observe their religion.

1. Codified Civil Rights

Penal Code section 2601 provides that each person serving a sentence in state prison or county jail for a realigned felony has specified civil rights, including the right to inherit, own, sell, or convey real or personal property, the right to correspond confidentially with any member of the State Bar or public office, the right to marry, and the right to make a will, among others. Penal Code section 2600 provides that a person serving a sentence in state prison or county jail for a realigned felony may be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.

This bill adds the right to exercise religious freedom, including accommodations for grooming and prescribed religious clothing and headwear to the list of enumerated civil rights.

1. Reasonable Opportunities to Exercise Religious Freedom

Penal Code section 5009 declares the intent of the Legislature that all individuals incarcerated in the state’s prisons be afforded reasonable opportunities to exercise religious freedom. Similar language is codified in Penal Code section 4027 which pertains to local detention facilities defined as “any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.”

This bill declares the intent of the Legislature that all individuals incarcerated in the state’s prisons and local detention facilities be afforded religious grooming, clothing, and headwear accommodations, as outlined in other provisions of the bill.

1. Existing CDCR Regulations

Religious Property

Current CDCR regulations outline the department’s policies regarding religious property. (Cal. Code of Regs., tit. 15, § 3190.) Incarcerated individuals are generally permitted to possess in their quarters or living area, state-issued property items, and authorized personal and religious property items which is based upon privilege group, assigned security level, and/or institution mission. (Cal. Code of Regs., tit. 15, § 3190, subd. (a).) The Religious Personal Property Matrix (RPPM) identifies a list of allowable personal religious property. (Cal. Code of Regs., tit. 15, § 3190, subd. (c).) Regulations specify that local exceptions to the RPPM shall also be identified. (Id.)

The RPPM applies to all incarcerated individuals. (CDCR, Religious Personal Property Matrix (Revised Jan. 1, 2023), p. 1 available at <https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2022/12/Religious_Personal_Property_Matrix_11.28.22.pdf>.) The RPPM specifies that religious texts, including but not limited to the Torah, Bible, Quran, and Vedas are authorized for an individual to possess. (Ibid.) The RPPM indicates that incarcerated individuals are permitted to wear personal religious clothing, as specified, but includes several prohibitions, including from possessing, using, creating, or wearing personal religious clothing with hoods, pictures, zippers, inside pockets, wearing items with any design, sign, or symbol associated with a security threat group, and wearing items which are obscene. (Ibid.) All items are required to be gray or white, and multicolored items must have gray or white as the predominant color. (Ibid.)

While not an exhaustive list, incarcerated individuals in Privilege Group A, B, or C are each permitted to possess: two of an item of religious headgear such as a scarf, hijab, yarmulke, or kufi, among others; one altar cloth; two bowls, chalices, or handwashing cups; one prayer shawl; four ounces of prayer oils; one prayer rug or mat; and one set of a religious medallion and chain. (Id. at pp. 3-5.)

Individuals incarcerated in specialized housing units, such as Administrative Segregation, face additional restrictions with respect to which religious items they may possess and the number of items they may possess. (Ibid.) However, determinations concerning religious personal property for these individuals may be made on a case-by-case basis, based on the individual’s behavior, mental health status, and safety or security needs. (Id. at p. 2.) Ultimately, the institution head retains the authority to remove or restrict use of an approved religious item based on a serious threat to facility security or to the safety of the incarcerated population or staff. (Ibid.)

Grooming Standards

Regulations require that an incarcerated individual’s hair and facial hair be clean, neatly styled, and groomed, when the person is away from the immediate area of the person’s quarters. (Cal. Code of Regs., tit. 15, § 3062, subd. (a).) Regulations further specify that an incarcerated individual’s hair or facial hair may be any length but is prohibited from extending over the eyebrows or covering the person’s face. (Cal. Code of Regs., tit. 15, § 3062, subd. (e).) If hair or facial hair is long, it is required to be worn in a neat, plain style, which does not draw undue attention to the individual. (Ibid.)

1. New Provisions of Law Related to Religious Grooming, Garments, and Headwear

This bill adds a new section to the Penal Code which applies to state and local detention facilities, including those operated by a private contractor. This bill establishes the right of an individual in the custody of a state or local detention facility to religious accommodation with respect to grooming, clothing, and headwear in observance of their sincerely held religious belief, at all times and throughout the facility, except in furtherance of a compelling state interest in an immediate threat or specific demonstrable security risk to the facility, staff, or others in custody. This bill permits the denial of religious grooming, clothing, and headwear accommodations only when doing so would be the least restrictive means of achieving these interests.

This bill additionally requires that a state or local facility do all of the following:

• Ask each individual during the initial booking, intake, and classification process whether the individual practices a sincerely held religious belief that requires accommodation with respect to grooming, religious clothing, or religious headwear.
• Provide the individual with a facility-issued religious garment or, if unavailable, allow the individual to retain their personal religious garment until a facility-issued garment becomes available.
• Prohibits the facility from requiring an individual’s hair or beard be trimmed or cut during the booking, intake, or classification process and requires that the individual in custody be allowed to maintain their hair and beard length according to their sincerely held religious beliefs.

This bill further requires the facility to do all of the following when an individual in custody wearing a religious garment is searched:

• Requires that staff offer the individual in custody the opportunity to have this search conducted in a private space out of view of members of the opposite gender.
• Requires the search, if requested, to be conducted in a private area by staff of the same gender.
• Requires staff to provide the individual with a facility-issued garment following the search.
• Permits the individual to retain their personal religious garment if a facility-issued garment is unavailable.

This bill also requires that the individual be provided access to facility-issued garments that fully cover their arms and legs if the religion of an individual in custody requires that their arms and legs be covered. This bill includes the following definitions:

• “Individual in custody” means a person confined to a state or local detention facility, including, but not limited to, a person in the booking process, in temporary holding pending release, transfer, or appearance in court, during or awaiting trial proceedings, awaiting arraignment, sentenced to imprisonment, and imprisoned upon conviction.
• “Local detention facility” means any city, county, or regional facility used for the confinement of prisoners for more than 24 hours.
• “Religious grooming” includes all forms of head, facial, and body hair that are part of an individual religious observance, and must be construed broadly.
• “Religious clothing and headwear” includes, but is not limited to, a hijab, kufi, scarf, yarmulke, patka, turban, bandana, and modesty belief with regard to fully covering the arms and legs.

Finally, this bill requires the sheriff of each county or the administrator of each local detention facility to develop and implement a religious grooming, clothing, and headwear policy for individuals in the custody of a local detention facility that is consistent with the mandates outlines above. The policy must be developed and implemented by January 1, 2025.

1. Argument in Support

ACLU California Action writes:

Currently, California does not have a consistent or codified statewide policy for state and local correctional and detention facilities that ensures the right to religious clothing, grooming, and headwear accommodations for individuals in their custody. While the California Department of Corrections and Rehabilitation (CDCR) policies and regulations touch on the right to certain religious clothing and headwear, it is limited to state-run facilities and does not meet the heightened protections as provided under federal law. The Board of State and Community Corrections (BSCC) provides no guidance for local detention facilities on religious accommodations, leaving it to the discretion of each local detention facility, city, or county to adopt their own policies. As a result, there are inconsistent policies for religious clothing, headwear and grooming from one facility to another leaving many of those incarcerated unprotected and stripped of their right to practice this dimension of their faith.

The U.S. Constitution and the Federal law, the Religious Land Use and Institutionalized Persons Act (RLUIPA) protects the incarcerated right to practice their religion. Under RLUIPA, a prison or jail cannot substantially burden the right to practice religion unless it can demonstrate that it has a compelling interest that cannot be achieved through any other less restrictive means. This bill will provide California the opportunity to align the state law with these heightened protections.

Religious clothing, headwear and grooming are integral aspects of religious expression for many faith communities and being denied this right is a harmful and deeply violating experience. … Comprehensive policies protecting religious clothing and headwear for those in custody have already been adopted in several cities and counties in California including Long Beach, Orange County, Riverside County, Santa Clara County, San Bernardino County and Ventura County.

SB 309 will create a comprehensive and uniform policy on religious clothing, headwear and grooming ensuring the dignity and right to religious exercise of those incarcerated and in custody of California’s prisons, jails, and other detention facilities.

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