Bill Text: CA AB958 | 2023-2024 | Regular Session | Amended
Bill Title: Prisons: visitation.
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Engrossed) 2023-09-01 - In committee: Held under submission. [AB958 Detail]
Download: California-2023-AB958-Amended.html
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Amended
IN
Assembly
May 18, 2023 |
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Amended
IN
Assembly
March 14, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 958
| Introduced by Assembly Members Santiago and Bonta (Principal coauthor: Senator Durazo) (Coauthors: Assembly Members Bryan, Ortega, Weber, Wicks, and Wilson) |
February 14, 2023 |
An act to amend Sections 2600, 2601, and 6400 of, and to add Sections 2601.5, 6403, and 6403.5 to, the Penal Code, relating to prisons.
LEGISLATIVE COUNSEL'S DIGEST
AB 958, as amended, Santiago.
Prisons: visitation.
(1) 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 personal visits by an intimate partner or a family member, as those terms are defined, as a civil right, as specified. The bill would provide that these civil rights may not be infringed, except as necessary
and only if narrowly tailored to further a compelling security interest of the government, and would provide that any governmental action related to these civil rights may be reviewed in court for legal or factual error.
(2) Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation to prescribe and amend rules and regulations for the administration of prisons and requires regulations, which are adopted by the Department of Corrections and Rehabilitation and may impact the visitation of inmates. Existing law requires these regulations to recognize and consider the value of inmate visitation as a means of increasing safety in prisons, maintaining family and community connections, and preparing inmates for successful release and rehabilitation. Existing regulations create the framework for establishing a visitation process in prisons that is conducted in as accommodating a manner as possible, subject to the need to
maintain order, the safety of persons, the security of institutions and facilities, and required prison activities and operations.
This bill would additionally require those regulations pertaining to inmate visits to recognize and consider the right to personal visits as a civil right. The bill would prohibit the department from denying or restricting in-person contact visits, visits except as specified, including as a disciplinary sanction against the incarcerated person, except as specified. person who has
committed a listed offense during a personal visit. The bill would require the department to inform an applicant both the visitor and the incarcerated person of the specific reason for any denial of a visit. visit, as specified. The bill would require the department to provide at least 3 days of in-person visiting per week, with a minimum of 8 7 visiting hours per day, plus access to video calls for at least an additional 8 hours per week.
day.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
(a) The Legislature finds and declares all of the following:(1) The United States Supreme Court has recognized a constitutional right to maintain parent-child relationships absent a compelling government interest, such as protecting a child from an unfit parent. (Santosky v. Kramer (1982) 455 U.S. 745, 753). The United States Court of Appeals for the Ninth Circuit has recognized that this constitutional right logically encompasses a right to maintain a relationship with a life partner. (United States v. Wolf Child (2012) 699 F.3d 1082, 1091).
(2) In 2009, the
Legislature passed Senate Concurrent Resolution No. 20 (Resolution Chapter 88 of the Statutes of 2009), which encouraged the Department of Corrections and Rehabilitation to use the bill of rights created by the San Francisco Children of Incarcerated Parents Partnership as a framework for analysis and determination of procedures when making decisions about services for the children of incarcerated parents.
(3) The bill of rights created by the San Francisco Children of Incarcerated Parents Partnership includes all of the following:
(A) A child has the right to speak with, see, and touch their parents. Actions to realize this right include, but are not limited to, providing access to visiting rooms that are child-centered, nonintimidating, and conducive to bonding, considering proximity to
family when locating prisons and assigning incarcerated persons, and encouraging child welfare departments to facilitate contact.
(B) A child has the right to support as that child faces a parent’s incarceration. Actions to realize this right include, but are not limited to, training adults who work with young people to recognize the needs and concerns of children whose parents are incarcerated, providing access to specially trained therapists, counselors, and mentors, and allocating 5 percent of the corrections-related budget to support the families of incarcerated persons.
(C) A child has a right to a lifelong relationship with their parent. Actions to realize this right include, but are not limited to, reexamining the federal Adoption and Safe Families Act of 1997, designating a
family services coordinator at prisons and jails, supporting incarcerated parents on reentry, and focusing on rehabilitation and alternatives to incarceration.
(4) The principles announced in the bill of rights created by the San Francisco Children of Incarcerated Parents Partnership additionally apply to close family members and loved ones of incarcerated people, including individuals with family-like relationships who are often excluded under unduly narrow legal definitions of family members.
(5) In resolution A/RES/70/175 (December 2015), the General Assembly of the United Nations adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the “Mandela Rules.” The Mandela Rules require that incarcerated persons be permitted to maintain regular communication
with family and friends by visits, telephone, electronic or digital communications, and mail (Rule 58). Further, the Mandela Rules provide that “disciplinary sanctions or restrictive measures shall not include the prohibition of family contact” (Rule 43).
(6) Article 16(3) of the Universal Declaration of Human Rights and Article 23(1) of the International Covenant on Civil and Political Rights establish the family as “the natural and fundamental group unit of society and is entitled to protection by society and the State.”
(7) Family bonds extend through prison gates and must be protected during periods of incarceration by promoting in-person contact and regular communication between incarcerated persons and their families.
(8) From 1975 until 1997, Section 2601 of the Penal Code listed the right to “receive personal visits” among the civil rights retained by incarcerated persons.
(9) The American Bar Association established the Criminal Justice Standards on the Treatment of Prisoners (February 2010), which requires correctional authorities to provide incarcerated people with “conditions conducive to maintaining healthy relationships with their families” (Standard 23-1.2(a)(vi)).
(A) Standard 23-8.5(b) directs correctional authorities to implement visiting policies that support maintaining healthy family relationships by providing sufficient visiting space, convenient visiting times, and family friendly
family-friendly environments.
(B) Standard 23-8.5(c) directs that visitors not be unreasonably excluded on the basis of past criminal convictions.
(C) Standard 23-8.5(e) directs that contact visits be provided to persons incarcerated for more than 30 days absent an individual determination that a contact visit between a particular incarcerated person and a particular visitor poses a specified danger. Prison officials should develop other forms of communication, including video visits, “provided that such options are not a replacement for opportunities for in-person contact.”
(10) Family support and connections can help promote an incarcerated person’s reentry and reduce recidivism. Protecting and
promoting in-person family contact for an incarcerated person and their family can help to maintain those connections and that support.
(A) As early as January 1972, a study by the then-California Department of Corrections Research Division identified its “central finding” as “the discovery of a strong and consistently positive relationship between parole success and the maintenance of strong family ties while in prison. . . . evidence suggests that the inmate’s family should be viewed as the prime treatment agent and family contacts as a major correctional technique.” (Research Report No. 46, Explorations in Inmate-Family Relationships, in collaboration with the Research Division of the California Department of Corrections at 111–113).
(B) A review of 50 years of empirical
research by the Prison Policy Initiative (December 2021) found that researchers in multiple states consistently concluded that visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for both the incarcerated person and their family—including better health, reduced recidivism, and improvement in children’s school performance. In particular, the review affirmed “In-person visitation is incredibly beneficial, reducing recidivism and improving health and behavior.”
(C) Research shows that visits and family programming reduce disciplinary infractions, increase the chances of successful parole, and decrease recidivism rates upon release and reentry into the community. Many incarcerated people rely on their families immediately after release to overcome reentry obstacles, including unemployment,
debt, and homelessness.
(11) Research confirms that incarceration imposes heavy burdens on the families of incarcerated people, including trauma for the children of incarcerated parents, as recognized on the adverse childhood experience index, in addition to the high costs of maintaining contact by telephone and visits. Consistent visits also have the potential for reducing the likelihood of intergenerational cycles of criminality and incarceration.
(12) Isolation from lack of visits and limited phone communications adversely affects the mental health of incarcerated people and contributes to mental suffering and conflict within prisons.
(13) The COVID-19 pandemic has exacerbated these burdens for families and
adverse effects of isolation for incarcerated persons. From March 2020 to April 2021, in-person visits were canceled. In-person visits were severely restricted thereafter and were canceled intermittently due to periodic COVID-19 outbreaks. In September 2022, COVID-19 restrictions for in-person visits were lifted.
(b) Therefore, it is the intent of the Legislature to restore, strengthen, and protect the right of incarcerated persons to receive personal visits to support the emotional health of Californians and their incarcerated loved ones, to improve in-custody conduct, and to reduce recidivism.
(c) It is the Legislature’s further intent to strictly limit the circumstances under which in-person visitation between an incarcerated person and their family can be denied, restricted, terminated,
or suspended.
SEC. 2.
Section 2600 of the Penal Code is amended to read:2600.
(a) A person sentenced to imprisonment in a state prison or to imprisonment pursuant to subdivision (h) of Section 1170 shall not be deprived of their rights unless the deprivation of those rights is narrowly tailored to further a compelling security interest of the government.(b) This section does not overturn the decision in Thor v. Superior Court (1993) 5 Cal.4th 725.
SEC. 3.
Section 2601 of the Penal Code is amended to read:2601.
Each person described in Section 2600 shall have all of the civil rights set forth under subdivisions (a) to (i), inclusive. These rights may not be infringed, except if narrowly tailored to further a compelling security interest of the government.(a) Except as provided in Section 2225 of the Civil Code, 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. However, to the extent authorized in Section 2600, the Department of Corrections and Rehabilitation may restrict or prohibit sales or conveyances that are made for business purposes.
(b) To correspond, confidentially, with a member of
a state or federal bar or holder of public office, provided that the prison authorities may open and inspect incoming mail to search for contraband.
(c) (1) To purchase, receive, and read any newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to this section, prison authorities may exclude any of the following matter:
(A) Obscene publications or writings, writings and mail containing information concerning where, how, or from whom this matter may be obtained.
(B) Any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence.
(C) Any matter concerning gambling or a lottery.
(2) This section does not limit the right of prison authorities to do either of the following:
(A) Open and inspect any packages received by an incarcerated person.
(B) Establish reasonable restrictions on the number of newspapers, magazines, and books that an incarcerated person may have in their cell or elsewhere in the prison at one time.
(d) To initiate civil actions, subject to a three dollar ($3) filing fee to be collected by
the Department of Corrections and Rehabilitation, in addition to any other filing fee authorized by law, and subject to Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure.
(e) To marry.
(f) To create a power of appointment.
(g) To make a will.
(h) To receive all benefits provided for in Sections 3370 and 3371 of the Labor Code and in Section 5069.
(i) (1) To receive personal visits, including in-person contact
visits. This
(2) This section shall does not require in-person visits
either of the following:
(A) Personal visits for a person incarcerated pursuant to subdivision (h) of Section 1170 in a county that is not required to provide those visits pursuant to Section 15820.948 of the Government Code or Section 4032.
(B) Personal visits to be contact visits in jails or other local detention facilities that lack appropriate space.
(3) It is the intent of the
Legislature that a jail or other local detention facility prioritize expanding capacity for personal visits when performing a renovation or new construction.
(j) For purposes of this section, a “personal visit” has the same meaning as defined in Section 6403.
SEC. 4.
Section 2601.5 is added to the Penal Code, to read:2601.5.
(a) In order to further the constitutionally protected right of a family member and intimate partner of an incarcerated person to maintain a relationship with that person, the Department of Corrections and Rehabilitation shall not infringe on a family member’s or intimate partner’s right to visit an incarcerated person unless the incarcerated person freely withholds consent or if the action is narrowly tailored to further a compelling security interest of the government.(b) As used in this section, the following definitions shall apply:
(1) A “family member” includes a spouse of the incarcerated person, a parent of the incarcerated person’s legal or biological child, and any of the following relatives, including step, in-law, grand, and great-grand relatives:
(A) Legal or biological child.
(B) Child under guardianship.
(C) Sibling.
(D) Parent.
(E) Guardian.
(F) Aunt or uncle.
(G) Cousin.
(H) Niece or nephew.
(I) A person with a familial-style or mentoring relationship with the incarcerated person or an above-listed family member of the incarcerated person.
(2) An “intimate partner” is an adult who is a spouse, former spouse, domestic partner, significant other, cohabitant, former cohabitant, or person with whom the incarcerated person has had a child or is having, or has had, a dating or engagement relationship.
(c) The enumeration of relationships in this section does not exclude persons with other social, religious, legal, or professional relationships from visiting an incarcerated person.
SEC. 5.
Section 6400 of the Penal Code is amended to read:6400.
Amendments to existing regulations and any future regulations adopted by the Department of Corrections and Rehabilitation that may impact the visitation of an incarcerated person shall do all of the following:(a) Recognize and consider the right to personal visits, including in-person contact visits, visits as a civil right pursuant to subdivision (i) of Section 2601 and family members’ and intimate partners’ right to visits as a civil right pursuant to Section 2601.5.
(b) Recognize and consider the value of visiting visitation as a means to improve the safety of prisons for both staff and incarcerated people.
(c) Recognize and consider the important role of visitation in establishing and maintaining a meaningful connection between an incarcerated person and their family members, intimate partners, and community.
(d) Recognize and consider the important role of visitation in preparing an incarcerated person for successful release and rehabilitation.
SEC. 6.
Section 6403 is added to the Penal Code, to read:6403.
(a) An in-person contact visit, including a family visit, shall not be denied or restricted by the Department of Corrections and Rehabilitation for any of the following reasons:(1) As a disciplinary sanction against an incarcerated person, except as discipline for commission of an offense listed in subdivision (b) during a personal visit.
(2) A visitor’s criminal, juvenile delinquency, or other history of involvement with law enforcement or the criminal justice system, whether it resulted in a criminal conviction, other
than a conviction for an offense listed in subdivision (b).
(3) A visitor’s current status of being under supervision, including parole, postrelease community supervision, probation, or informal probation supervision.
(4) A visitor’s previous incarceration, including incarceration in the facility where the personal visit will take place.
(5) A visitor’s pending criminal charges, other than for an offense listed in subdivision (b).
(6) A visitor’s outstanding unpaid fines, fees, or restitution.
(7) (A) An incarcerated person’s criminal, juvenile delinquency, or other history of involvement with law enforcement or the criminal justice system, regardless of whether it resulted in a criminal conviction, other than a conviction for an offense set forth under subdivision (b), except when required by Section 1202.05 or required or permitted by regulation in existence on or before January 1, 2024, based on convictions or arrests for sex crimes against minors.
(B) A family visit with a specific visitor may be denied or restricted because of an incarcerated person’s convictions for registrable sex offenses or violence against a family member or against a minor in the person’s care or custody if there is a substantial risk of violence or sexual abuse against that specific visitor.
(b) A visitor or incarcerated person may have their personal visits denied or restricted based only on the following conduct during a visit:
(1) Bringing contraband into the visiting area.
(2) Committing physical violence during a personal visit or the visitor screening process.
(3) Escaping, aiding an escape, or attempting to escape or aid an escape.
(2)
(4) (A) Engaging in sexual conduct with a minor.
(B) An incarcerated person may be denied a video call with that minor or with other minors if a preponderance of the evidence shows a substantial risk of inappropriate conduct.
(3)
(5) Engaging in sexual conduct with adults
an adult outside of a family visit.
(4)Committing physical violence during a visit or the visitor screening process.
(5)Escaping, aiding an escape, or attempting to escape or aid an escape.
(c) The department may require an applicant to provide sufficient information to enable it to obtain the applicant’s criminal history records from the Department of Justice but shall neither require an applicant to itemize their own criminal history nor consider such voluntarily submitted
information in determining whether to approve the application.
(d) When an incarcerated person is limited to in-person noncontact visits, the length and frequency of their in-person noncontact visits and video calls shall equal the length of in-person contact visits and video calls available to the general population, reasonable space permitting.
(e) (1) In the case of a denial of a request for a personal visit, both the visitor and the incarcerated person shall receive written notice of the denial within three days of the decision. The notice shall include all of the following:
(A) The date of the decision and its effect together with the name, title, and institutional affiliation of the decisionmaking official.
(B) Except as specified in subparagraph (C), the notice shall also state the reason for the denial.
(C) When the grounds for denial include criminal record information, alleged personal conduct, or any other personal or private information about either party, only the person to whom that information pertains, or about whom the allegations are made, shall receive a detailed specification of the reasons for the denial.
(D) Written instructions on all procedures for appeals.
(2) In the case of a denial of a request for a personal visit, both the visitor and the incarcerated person may reapply after 30 days.
(2)Nothing in this section shall be interpreted to
(3) This section does not restrict the legal remedies available to an incarcerated person or to nonincarcerated visitors to dispute or redress denials of visitations.
(f) An incarcerated
person shall not be required to withhold consent to a personal visit as a disciplinary sanction as a means of avoiding a disciplinary sanction or as a condition of participating in or enjoying any privilege or program while incarcerated.
(g) For the purposes of this section, all of the following apply:
(1) (A) A visit “personal visit” means an in-person contact visit, an in-person noncontact visit, or a family visit.
(B) A personal visit is “denied or restricted” if it is suspended, revoked, or terminated early and when a visitor is excluded or any other administrative action reduces a specified incarcerated person’s or visitor’s access to visiting.
(B)
(C) A visitor may be denied visiting access per reasonable uniformly enforced departmentwide regulations, communicated to the public with adequate and timely notice, related to identification, dress, intoxication, search
procedures, and authorization for visits by minors that are consistent with this section, subdivision (i) of Section 2601, and Section 2601.5.
(C)
(D) A denial of, or restriction on, visits or visiting access under this section shall not exceed what was permissible under department regulations at the time this law is enacted on January 1, 2024.
(2) A “family visit” is an in-person contact visit that occurs overnight in a private, apartment-like facility on prison grounds in which only an eligible incarcerated person and eligible immediate
family members, as both are defined in department regulations, may participate.
(3) A “disciplinary sanction” is a consequence of being charged with, investigated for, or found guilty of a rule violation, including a change in privilege group, except that incarcerated people may be limited to noncontact visits when placed in administrative segregation or security housing units.
(h) To the extent that visiting rules and standards, as prescribed in Title 15 of the California Code of Regulations, conflict with this section, the Department of Corrections and Rehabilitation shall adopt regulations that conform with this section.
(i) The California
Department of Corrections and Rehabilitation shall reinstate personal visits, including in-person visits and family visits, that were restricted or prohibited contrary to the standards created in this section prior to January 1, 2024.
SEC. 7.
Section 6403.5 is added to the Penal Code, to read:6403.5.
(a) At each facility, the Department of Corrections and Rehabilitation shall provide at least three days of in-person visitation per week, with a minimum of(b) If in-person visitation is impossible due to a public health emergency, the in-person visiting hours shall be replaced by an equal number of video calling hours in addition to the regular video calling hours. Once the emergency is over, in-person visiting shall be immediately reinstated.
