BILL NUMBER: SB 892 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 18, 2014
INTRODUCED BY Senator Hancock
(Coauthors: Assembly Members Ammiano and Skinner)
JANUARY 13, 2014
An act relating to state prisons. An act
to amend Section 12838.1 of the Government Code, and to amend
Sections 2932 and 2933.6 of, and to add Article 7 (commencing with
Section 2696) to Chapter 4 of Title 1 of Part 3 of, the Penal Code,
relating to state prisons.
LEGISLATIVE COUNSEL'S DIGEST
SB 892, as amended, Hancock. State prisons.
Existing law establishes the Department of Corrections and
Rehabilitation to oversee the state prison system. Existing law
authorizes the Governor to appoint 4 officers, subject to Senate
approval, to the Division of Adult Institutions within the Department
of Corrections and Rehabilitation, to oversee specified categories
of adult institutions.
This bill would authorize an additional officer appointment by the
Governor, to oversee the security threat group validation and
Security Housing Unit operations and conditions within that division.
Existing law authorizes Security Housing Units for segregation of
certain prisoners for disciplinary or security purposes, and because
of gang membership or association.
This bill would require specified due process procedures for
determining if an inmate is a member of or an associate of a gang,
and subject to placement in a Security Housing Unit. The bill would
require the Office of the Inspector General, commencing July 1, 2015,
to review every determination completed on or after July 1, 2015,
prior to the offender being placed in a Security Housing Unit, and in
which confidential information was used, that an inmate is a gang
member or associate, to determine whether the minimum level of due
process was provided and that the determination was supported by the
evidence. If the Inspector General concludes that the determination
was not supported by the evidence, or that the inmate was not
provided the minimum level of due process, the gang member or
associate classification would be deleted and the inmate would not be
placed in a Security Housing Unit.
The bill would require an inmate subject to an indeterminate
Security Housing Unit term to be placed in a multistep program
designed to promote positive behavior and cessation of gang-related
activities, and promotion of successful assimilation of the inmate
back into the general prison population. The bill would require the
Inspector General, on or before July 1, 2016, to review the central
files of each inmate who is subject to an indeterminate Security
Housing Unit term who is denied progression within the program to
assess the department's compliance with the program.
The bill would require an inmate subject to a determinate Security
Housing Unit term to receive an individualized plan to address the
conduct giving rise to the term in the Security Housing Unit, and to
promote successful assimilation back into the general prison
population. The bill would authorize an inmate serving a determinate
Security Housing Unit term to earn credits toward reducing that term.
The bill would require the Inspector General, commencing July 1,
2016, and annually thereafter, to provide an audit report to the
Governor and the Legislature of inmates subject to a determinate term
in a Security Housing Unit to assess compliance by the department.
The bill would require an inmate in a Security Housing Unit or
Psychiatric Services Unit to have access to educational programming,
to have daily face-to-face interaction with uniformed and civilian
staff, to have access to radio or television, and the opportunity to
earn additional specified privileges and credits towards reduction of
the inmate's sentence. The bill would require the Inspector General,
on or before July 1, 2016, and biennially thereafter, to perform an
audit to assess the department's compliance with these provisions.
The bill would require mental health screening for an inmate
placed in the Security Housing Unit and subsequent mental health
assessments. The bill would require the Inspector General to employ 2
offender resource specialists at each Security Housing Unit and
Psychiatric Services Unit, to be responsible for, among other things,
assisting an inmate with concerns about the inmate's
responsibilities and rights during confinement in one of those units,
and responding to an inmate's family member's inquiries.
The bill would require the department, commencing July 1, 2015, to
collect specified data regarding inmates subject to a term in a
Security Housing Unit. The bill would require the Inspector General,
commencing January 1, 2017, and biennially thereafter, to use the
data to prepare reports for the Legislature on specified criteria
pertaining to inmates in a Security Housing Unit and a Psychiatric
Services Unit.
Existing law provides that an inmate placed in a Security Housing
Unit for specified crimes or because of gang association or
membership, or placed in a Psychiatric Services Unit, is ineligible
to earn credits towards reducing his or her sentence during the time
the inmate is in the Security Housing Unit.
This bill would provide that those inmates would be eligible to
earn credits toward reducing their sentences while in a Security
Housing Unit or Psychiatric Services Unit for a period during which
the inmate has been free of disciplinary action for 6 consecutive
months.
The bill would state findings and declarations by the Legislature
relative to Security Housing Units and would make conforming changes.
Existing law establishes the Department of Corrections and
Rehabilitation to oversee the state prison system.
This bill would declare that it is the intent of the Legislature
to enact legislation to address or modify the use of segregated
housing units in the state prison system.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the
following:
(a) Prisons serve a vital role in California's public safety and
criminal justice system. The prison system also is an increasingly
expensive government program.
(b) The mission of the Department of Corrections and
Rehabilitation is to enhance public safety through safe and secure
incarceration of the most serious and violent offenders, and to
provide effective parole supervision and rehabilitative strategies
for the successful reintegration of offenders into our communities.
(c) The criminal justice system must be transparent and include
performance measures that hold it accountable for its results in
protecting the public, reducing reoffending, and conserving taxpayers'
money.
(d) Currently, California places an offender in a setting isolated
from the general prison population solely because the offender is a
gang member. An offender is labeled a gang member or gang associate
through a process that is completely internal within the department
and that is not subject to any systematic independent oversight.
(e) An offender in the Security Housing Unit is locked in a cell
for up to 23 hours a day. These offenders are typically given minimal
outdoor time alone in small, separately secured yards, and eat their
meals in their cells. An offender in a Security Housing Unit cannot
make phone calls and has very limited access to family member visits.
(f) As of February 27, 2014, there were 2,483 offenders serving
indeterminate terms in the Security Housing Unit and 1,466 offenders
serving determinate terms in the Security Housing Unit in California
state prisons.
(g) As of February 27, 2014, there were 39 offenders who had been
in the Security Housing Unit for more than 25 years, and 46 offenders
who had been in the Security Housing Unit for more than 20 years.
According to the department, the average time an offender spends in
the Security Housing Unit is 6.8 years.
(h) Mental health professionals and researchers have found that
offenders in solitary confinement, especially for an extended time,
suffer from a number of psychological and psychiatric illnesses.
Those illnesses include aggression, chronic insomnia, anxiety, panic
attacks, extreme paranoia, and an offender often exhibits the signs
and symptoms of psychosis, including hallucinations.
(i) Between September 2012 and September 2013, 273 offenders were
paroled directly into our communities from the Security Housing Unit.
(j) Long-term segregated housing as a prison management strategy
should be used only as a last resort and should be limited in
duration. The conditions of confinement should include evidence-based
programs designed to return the offender to the general prison
population.
SEC. 2. Section 12838.1 of the
Government Code is amended to read:
12838.1. (a) There is hereby created within the Department of
Corrections and Rehabilitation, under the Undersecretary for
Administration and Offender Services, the following divisions:
(1) The Division of Enterprise Information Services, the Division
of Facility Planning, Construction, and Management, and the Division
of Administrative Services. Each division shall be headed by a
director, who shall be appointed by the Governor, upon recommendation
of the secretary, subject to Senate confirmation, who shall serve at
the pleasure of the Governor.
(2) The Division of Internal Oversight and Research. This division
shall be headed by a director, who shall be appointed by the
Governor, upon recommendation of the secretary, who shall serve at
the pleasure of the Governor.
(b) There is hereby created in the Department of Corrections and
Rehabilitation, under the Undersecretary for Health Care Services,
the Division of Health Care Operations and the Division of Health
Care Policy and Administration. Each division shall be headed by a
director, who shall be appointed by the Governor, upon recommendation
of the secretary, subject to Senate confirmation, who shall serve at
the pleasure of the Governor.
(c) There is hereby created within the Department of Corrections
and Rehabilitation, under the Undersecretary for Operations, the
Division of Adult Institutions, the Division of Adult Parole
Operations, the Division of Juvenile Justice, and the Division of
Rehabilitative Programs. Each division shall be headed by a director,
who shall be appointed by the Governor, upon recommendation of the
secretary, subject to Senate confirmation, who shall serve at the
pleasure of the Governor.
(d) The Governor shall, upon recommendation of the secretary,
appoint four five subordinate officers
to the Division of Adult Institutions, subject to Senate
confirmation, who shall serve at the pleasure of the Governor. Each
subordinate officer appointed pursuant to this subdivision shall
oversee an identified category of adult institutions, one of which
shall be female offender facilities.
facilities, and one that shall oversee security threat group
validation and Security Housing Unit operations and conditions, as
described in Article 7 (commencing with Section 2696) of Chapter 4 of
Title 1 of Part 3 of the Penal Code.
(e) (1) Unless the context clearly requires otherwise, whenever
the term "Chief Deputy Secretary for Adult Operations" appears in any
statute, regulation, or contract, it shall be construed to refer to
the Director of the Division of Adult Institutions.
(2) Unless the context clearly requires otherwise, whenever the
term "Chief Deputy Secretary for Adult Programs" appears in any
statute, regulation, or contract, it shall be construed to refer to
the Director of the Division of Rehabilitative Programs.
(3) Unless the context clearly requires otherwise, whenever the
term "Chief Deputy Secretary for Juvenile Justice" appears in any
statute, regulation, or contract, it shall be construed to refer to
the Director of the Division of Juvenile Justice.
SEC. 3. Article 7 (commencing with Section 2696)
is added to Chapter 4 of Title 1 of Part 3 of the Penal
Code , to read:
Article 7. The Security Housing Unit
2696. The terms below, as used in this article, are defined as
follows:
(a) "Custody" means the offender is in the physical custody of the
Department of Corrections and Rehabilitation.
(b) "Determinate Security Housing Unit term" means the offender is
placed in the Security Housing Unit for a determinate period of time
because the offender was found guilty of a serious offense, as
described in the department's regulations.
(c) "Indeterminate Security Housing Unit term" means that an
offender is assigned to the Security Housing Unit for an
indeterminate period. These offenders include security threat group
affiliates and offenders in protective custody.
(d) "Psychiatric Services Unit" means a facility designed and
staffed to treat mentally disordered offenders who are serving terms
in the Security Housing Unit.
(e) "Security Housing Unit" means housing for an offender who is a
difficult management case, a security threat group member, or a
maximum security offender. There are four Security Housing Units in
the state prison system located in Pelican Bay State Prison,
California State Prison, Corcoran, California Institution for Women,
and California Correctional Institution.
(f) "Security threat group," which is used synonymously with the
term "gang," means any ongoing formal or informal organization,
association, or group of three or more persons that has a common name
or identifying sign or symbol whose members and associates,
individually or collectively, engage or have engaged on behalf of
that organization, association, or group, in two or more acts that
include planning, organizing, threatening, financing, soliciting, or
committing unlawful acts or misconduct.
(g) "Security threat group affiliate" means an offender who has
been validated as either a member or associate of a security threat
group.
(h) "Security threat group validation" means the process used by
the department to identify and document an offender affiliated with a
security threat group.
2696.5. (a) The department shall provide an offender due process
prior to validating an offender in its custody as a security threat
group affiliate. An offender shall be afforded, at a minimum, the
following procedural protections:
(1) Timely, written, and effective notice that security threat
group validation is being considered, and the facts upon which that
consideration is based.
(2) Decisionmaking by a dedicated and specially trained
classification committee.
(3) A hearing at which the offender may be heard in person and,
absent an individualized determination of good cause, has a
reasonable opportunity to present available witnesses and
information.
(4) An interpreter, if necessary, for the offender to understand
or participate in the proceedings.
(5) An advocate to assist with the offender's investigation.
(6) An independent determination by the committee of the
reliability and credibility of confidential informants.
(7) A written statement in plain language setting forth the
specific evidence relied upon, and the reasons for, validation.
(b) Commencing July 1, 2015, the Office of the Inspector General
shall, prior to placement of an offender in a Security Housing Unit,
review every security threat group validation completed on or after
July 1, 2015, in which confidential information was used, to
determine whether the minimum level of due process was provided to
the validated offender and that the validation was supported by the
evidence. If the Office of Inspector General concludes that the
security threat group validation was not supported by the evidence or
that the offender was not provided the minimum level of due process,
the offender's gang validation shall be deleted and the offender
shall not be placed in the Security Housing Unit.
2697. (a) Commencing on January 1, 2015, an offender who is
serving an indeterminate Security Housing Unit term, and thereafter,
an offender placed in the Security Housing Unit, shall be placed in
the Step Down Program. The Step Down Program is a multistep program
designed to provide programming with the ultimate goal of returning
the offender to the general prison population.
(b) Within 30 days of an offender being placed into the Step Down
Program, the department shall develop an individualized plan for the
offender. The plan shall include, but not be limited to, an
assessment of the offender's needs, an individualized strategy to
provide the offender with programming to address those needs, and a
statement of the expectations for the offender to progress through
the Step Down Program. The department shall provide the plan to the
offender and explain it so that the offender can understand his or
her responsibilities under the plan. A copy of the plan shall be
placed in the offender's central file.
(c) An offender in the Step Down Program shall be provided with
promising or evidence-based programming designed to eliminate
participation in security threat group-related activities. The
programming shall include incentives to promote positive behavior.
The programming shall also promote the successful assimilation of an
offender back into the general prison population. Information
obtained from the offender during this programming shall not be used
in a Rules Violation Report against the offender or to keep the
offender in the Security Housing Unit.
(d) The department shall track the offender's progress in meeting
the requirements of the plan described in subdivision (b).
(e) An offender in the Step Down Program shall be assessed by a
correctional counselor every 90 days, in order to monitor the
offender's progress. The correctional counselor and the offender
resource specialist shall meet with the offender and provide the
offender with a progress report that outlines what requirements the
offender is not meeting and what the offender is expected to do to
progress within the Step Down Program. An interpreter shall be
provided, if necessary, so that the offender can understand and
participate in the assessment. A copy of the report shall be placed
in offender's central file.
(f) An offender shall have the opportunity to advance to the next
step of the Step Down Program after successful participation in the
current step for 180 days.
(g) The department shall prepare a comprehensive reentry plan for
every offender who will parole directly out of the Security Housing
Unit or the Psychiatric Services Unit into the community.
(h) On or before July 1, 2016, the Office of the Inspector General
shall review the central file of each offender who is denied
progress within the Step Down Program to assess the department's
compliance with this section.
2697.5. (a) The department shall develop an individualized plan
for the offender within 30 days of an offender beginning a
determinate Security Housing Unit term. The plan shall include an
assessment of the offender's needs, an individualized strategy to
provide the offender with programming to address those needs, and a
statement of the expectations for the offender to progress toward
fewer restrictions and lower levels of custody based on the offender'
s behavior. The department shall provide the plan to the offender and
explain it, so that the offender can understand those expectations.
A copy of the plan shall be placed in the offender's central file.
(b) An offender serving a determinate Security Housing Unit term
shall be provided with promising or evidence-based programming
consistent with addressing the conduct giving rise to the offender's
determinate Security Housing Unit term. The programming shall promote
the successful assimilation of the offender back into the general
prison population. Information obtained from the offender during the
programming shall not be used in a Rules Violation Report against the
offender, or to keep the offender in the Security Housing Unit.
(c) The department shall track the offender's progress in meeting
the requirements of the plan described in subdivision (a).
(d) An offender serving a determinate Security Housing Unit term
shall be assessed by a correctional counselor every 90 days, in order
to monitor the offender's progress. The correctional counselor and
the offender resource specialist shall meet with the offender and
provide the offender with a progress report that outlines what
requirements the offender is not meeting and what the offender is
expected to do to be eligible for additional privileges and early
release from the Security Housing Unit. An interpreter shall be
provided, if necessary, so that the offender can understand and
participate in the assessment. A copy of the report shall be placed
in offender's central file.
(e) An offender serving a determinate Security Housing Unit term
shall be eligible to earn credits towards early release from the
Security Housing Unit. The department shall be responsible for
developing guidelines for earning those credits.
(f) The department shall prepare a comprehensive reentry plan for
every offender who will parole directly out of the Security Housing
Unit or Psychiatric Services Unit into the community.
(g) (1) Commencing on July 1, 2016, and annually thereafter, the
Inspector General shall provide an audit report to the Governor and
the Legislature of the offenders serving a determinate Security
Housing Unit term to assess the department's compliance with this
section.
(2) The report required by paragraph (1) shall be submitted in
compliance with Section 9795 of the Government Code.
2698. (a) An offender placed in the Security Housing Unit or the
Psychiatric Services Unit shall be provided with meaningful forms of
mental, physical, and social stimulation. Those forms of stimulation
shall include, but not be limited to, the following:
(1) Access to educational programming, including in-cell
programming, that shall be developed for an offender who is not
permitted to leave his or her cell.
(2) Opportunities to exercise in the presence of other offenders,
provided however, that the offenders may be separated by security
barriers, if necessary.
(3) Daily face-to-face interaction with both uniformed and
civilian staff or volunteers.
(4) Access to radio or television.
(b) The department shall create a behavior-driven progressive
incentives program that includes, but is not limited to, the
following, for any 30-day period where an offender in the Security
Housing Unit or Psychiatric Services Unit does not receive a rules
violation report:
(1) One additional phone call in the following month.
(2) One additional photograph, for a maximum of 10.
(3) Four additional hours of recreational yard time in the
following month.
(c) An offender shall be entitled to the privileges in subdivision
(b) if a disciplinary action is reversed, dismissed, or modified to
a minor rules violation.
(d) An offender is eligible to earn credits pursuant to Section
2933 or 2933.05 during the time that he or she is in the Security
Housing Unit or the Psychiatric Services Unit as provided in Section
2933.6.
(e) On or before July 1, 2016, and biennially thereafter, the
Office of the Inspector General shall perform an audit to assess the
department's compliance with this section.
2698.5. (a) An offender shall undergo a mental health screening
by a qualified mental health professional within 30 days before
beginning a term in the Security Housing Unit. An offender who has
been diagnosed with a serious mental illness or who has a history of
serious mental illness and decompensation in segregated settings
shall not be placed in the Security Housing Unit.
(b) The mental health of an offender in the Security Housing Unit
or Psychiatric Services Unit shall be monitored as follows:
(1) Correctional staff shall maintain a daily log documenting the
offender's behavior.
(2) A qualified mental health professional shall, at least weekly,
observe offenders in the Security Housing Unit and the Psychiatric
Services Unit, speak to unit staff, review the offender log, and
observe and speak to offenders who are receiving mental health
treatment.
(3) A qualified mental health professional shall perform a
comprehensive mental health assessment of an offender in the Security
Housing Unit or the Psychiatric Services Unit every 90 days, unless
a qualified mental health professional determines that the assessment
is unnecessary based on observations made pursuant to paragraphs (1)
and (2).
(c) The department shall provide training to all correctional
staff in the Security Housing Unit and Psychiatric Services Unit on
how to respond to an individual experiencing a psychiatric crisis in
ways that reduce rather than escalate the crisis.
2699. The Office of the Inspector General shall employ two
offender resource specialists for each Security Housing Unit and
Psychiatric Services Unit. The offender resource specialist's
responsibilities shall include, but not be limited to, the following:
(a) Assisting an offender with concerns and questions concerning
the offender's responsibilities and rights during confinement in the
Security Housing Unit or Psychiatric Services Unit.
(b) Responding to inquiries from an offender's family members.
(c) Explaining Security Housing Unit and Psychiatric Services Unit
policies to the public.
2699.5. (a) Commencing July 1, 2015, the department shall collect
the following data:
(1) Information relating to each offender who is going through, or
has gone through, the validation process for determining a security
threat group affiliate, including the following:
(A) The offender's gender, age, mental health status, and race.
(B) The outcome at every step of the validation process.
(C) If the offender was validated, the date of validation.
(D) If the offender was validated, the level of validation that
the offender assigned.
(2) Information relating to the offender being housed in the
Security Housing Unit or Psychiatric Services Unit, including the
following:
(A) The offender's gender, age, mental health status, and race.
(B) The date the offender was placed in the Security Housing Unit
or Psychiatric Services Unit and the date of release.
(C) The reason the offender is serving a Security Housing Unit
term.
(D) If the offender is serving an indeterminate Security Housing
Unit term, the progress the offender has made in the Step Down
Program.
(E) For offenders in the Step Down Program, the time spent in each
step of the program.
(F) The number of visits from persons other than staff that the
offender was provided while serving a term in the Security Housing
Unit or Psychiatric Services Unit.
(G) The number of phone calls the offender was provided while
serving a term in the Security Housing Unit.
(H) Whether the offender attempted to commit or committed suicide.
(I) Any disciplinary action taken against the offender, and the
result of that action.
(J) Whether the offender was paroled directly out of the Security
Housing Unit or the Psychiatric Services Unit into the community.
(3) The number of administrative appeals filed by offenders in the
Security Housing Unit or Psychiatric Services Unit, the subject
matter of the appeals, and the outcome of the appeals.
(b) Commencing January 1, 2017, and biennially thereafter, the
Office of the Inspector General shall use the data described in
subdivision (a) to prepare a report to the Legislature that includes,
but is not limited to, the following information:
(1) The number of offenders investigated for security threat group
validation.
(2) The number of cases in which the Office of Correctional Safety
recommended against validation and the outcome of those cases.
(3) The number of cases in which the security threat group
committee decided not to validate the offender.
(4) The number of offenders who were not initially placed in the
Security Housing Unit or Psychiatric Services Unit but were sent to
the Security Housing Unit or Psychiatric Services Unit within six
months of validation.
(5) The number of offenders placed for an indeterminate Security
Housing Unit term or in the Psychiatric Services Unit.
(6) The number of offenders placed for a determinate Security
Housing Unit term or in the Psychiatric Services Unit.
(7) The average length of time offenders serving an indeterminate
Security Housing Unit term spent in the Security Housing Unit or the
Psychiatric Services Unit, or both.
(8) The average length of time offenders spent in each step of the
Step Down Program.
(9) The number of suicide attempts made by offenders in the
Security Housing Unit and the Psychiatric Services Unit.
(10) The number of suicides by offenders in the Security Housing
Unit and the Psychiatric Services Unit.
(11) The number of offenders in the Security Housing Unit and the
Psychiatric Services Unit who were paroled directly out of the
Security Housing Unit and the Psychiatric Services Unit into the
community.
(12) The number of disciplinary actions taken against offenders in
the Security Housing Unit and the Psychiatric Services Unit, the
type of actions, and the outcomes of the disciplinary actions.
(13) The number of visits by persons other than staff to offenders
in the Security Housing Unit and the Psychiatric Services Unit.
(14) The number of phone calls
provided to offenders in the Security Housing Unit and the
Psychiatric Services Unit.
(15) The number of administrative appeals filed by offenders in
the Security Housing Unit or the Psychiatric Services Unit, the
subject matter of the appeals, and the outcomes of those appeals.
(c) The report required by subdivision (b) shall be submitted in
compliance with Section 9795 of the Government Code.
SEC. 4. Section 2932 of the Penal Code
is amended to read:
2932. (a) (1) For any time credit accumulated pursuant to Section
2931 or 2933, not more than 360 days of credit may be denied or lost
for a single act of murder, attempted murder, solicitation of
murder, manslaughter, rape, sodomy, or oral copulation accomplished
against the victim's will, attempted rape, attempted sodomy, or
attempted oral copulation accomplished against the victim's will,
assault or battery causing serious bodily injury, assault with a
deadly weapon or caustic substance, taking of a hostage, escape with
force or violence, or possession or manufacture of a deadly weapon or
explosive device, whether or not prosecution is undertaken for
purposes of this paragraph. Solicitation of murder shall be proved by
the testimony of two witnesses, or of one witness and corroborating
circumstances.
(2) Not more than 180 days of credit may be denied or lost for a
single act of misconduct, except as specified in paragraph (1), which
could be prosecuted as a felony whether or not prosecution is
undertaken.
(3) Not more than 90 days of credit may be denied or lost for a
single act of misconduct which could be prosecuted as a misdemeanor,
whether or not prosecution is undertaken.
(4) Not more than 30 days of credit may be denied or lost for a
single act of misconduct defined by regulation as a serious
disciplinary offense by the Department of Corrections and
Rehabilitation. Any person confined due to a change in custodial
classification following the commission of any serious disciplinary
infraction shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a period
not to exceed the number of days of credit which have been lost for
the act of misconduct or 180 days, whichever is less. Any person
confined in a secure housing unit Security
Housing Unit for having committed any misconduct specified in
paragraph (1) in which great bodily injury is inflicted upon a
nonprisoner shall, in addition to any loss of time credits, be
ineligible to receive participation or worktime credit for a period
not to exceed the number of days of credit which have been lost for
that act of misconduct. In unusual cases, an inmate may be denied the
opportunity to participate in a credit qualifying assignment for up
to six months beyond the period specified in this subdivision if the
Secretary of the Department of Corrections and Rehabilitation finds,
after a hearing, that no credit qualifying program may be assigned to
the inmate without creating a substantial risk of physical harm to
staff or other inmates. At the end of the six-month period and of
successive six-month periods, the denial of the opportunity to
participate in a credit qualifying assignment may be renewed upon a
hearing and finding by the director.
(5) The prisoner may appeal the decision through the department's
review procedure, which shall include a review by an individual
independent of the institution who has supervisorial authority over
the institution.
(b) For any credit accumulated pursuant to Section 2931, not more
than 30 days of participation credit may be denied or lost for a
single failure or refusal to participate. Any act of misconduct
described by the Department of Corrections and Rehabilitation as a
serious disciplinary infraction if committed while participating in
work, educational, vocational, therapeutic, or other prison activity
shall be deemed a failure to participate.
(c) Any procedure not provided for by this section, but necessary
to carry out the purposes of this section, shall be those procedures
provided for by the Department of Corrections and Rehabilitation for
serious disciplinary infractions if those procedures are not in
conflict with this section.
(1) (A) The Department of Corrections and Rehabilitation shall,
using reasonable diligence to investigate, provide written notice to
the prisoner. The written notice shall be given within 15 days after
the discovery of information leading to charges that may result in a
possible denial of credit, except that if the prisoner has escaped,
the notice shall be given within 15 days of the prisoner's return to
the custody of the secretary. The written notice shall include the
specific charge, the date, the time, the place that the alleged
misbehavior took place, the evidence relied upon, a written
explanation of the procedures that will be employed at the
proceedings and the prisoner's rights at the hearing. The hearing
shall be conducted by an individual who shall be independent of the
case and shall take place within 30 days of the written notice.
(B) The Department of Corrections and Rehabilitation may delay
written notice beyond 15 days when all of the following factors are
true:
(i) An act of misconduct is involved which could be prosecuted as
murder, attempted murder, or assault on a prison employee, whether or
not prosecution is undertaken.
(ii) Further investigation is being undertaken for the purpose of
identifying other prisoners involved in the misconduct.
(iii) Within 15 days after the discovery of information leading to
charges that may result in a possible denial of credit, the
investigating officer makes a written request to delay notifying that
prisoner and states the reasons for the delay.
(iv) The warden of the institution approves of the delay in
writing.
The period of delay under this paragraph shall not exceed 30 days.
The prisoner's hearing shall take place within 30 days of the
written notice.
(2) The prisoner may elect to be assigned an employee to assist in
the investigation, preparation, or presentation of a defense at the
disciplinary hearing if it is determined by the department that
either of the following circumstances exist:
(A) The prisoner is illiterate.
(B) The complexity of the issues or the prisoner's confinement
status makes it unlikely that the prisoner can collect and present
the evidence necessary for an adequate comprehension of the case.
(3) The prisoner may request witnesses to attend the hearing and
they shall be called unless the person conducting the hearing has
specific reasons to deny this request. The specific reasons shall be
set forth in writing and a copy of the document shall be presented to
the prisoner.
(4) The prisoner has the right, under the direction of the person
conducting the hearing, to question all witnesses.
(5) At the conclusion of the hearing the charge shall be dismissed
if the facts do not support the charge, or the prisoner may be found
guilty on the basis of a preponderance of the evidence.
(d) If found guilty the prisoner shall be advised in writing of
the guilty finding and the specific evidence relied upon to reach
this conclusion and the amount of time-credit loss. The prisoner may
appeal the decision through the department's review procedure, and
may, upon final notification of appeal denial, within 15 days of the
notification demand review of the department's denial of credit to
the Board of Parole Hearings, and the board may affirm, reverse, or
modify the department's decision or grant a hearing before the board
at which hearing the prisoner shall have the rights specified in
Section 3041.5.
(e) Each prisoner subject to Section 2931 shall be notified of the
total amount of good behavior and participation credit which may be
credited pursuant to Section 2931, and his or her anticipated
time-credit release date. The prisoner shall be notified of any
change in the anticipated release date due to denial or loss of
credits, award of worktime credit, under Section 2933, or the
restoration of any credits previously forfeited.
(f) (1) If the conduct the prisoner is charged with also
constitutes a crime, the department may refer the case to criminal
authorities for possible prosecution. The department shall notify the
prisoner, who may request postponement of the disciplinary
proceedings pending the referral.
(2) The prisoner may revoke his or her request for postponement of
the disciplinary proceedings up until the filing of the accusatory
pleading. In the event of the revocation of the request for
postponement of the proceeding, the department shall hold the hearing
within 30 days of the revocation.
(3) Notwithstanding the notification requirements in this
paragraph and subparagraphs (A) and (B) of paragraph (1) of
subdivision (c), in the event the case is referred to criminal
authorities for prosecution and the authority requests that the
prisoner not be notified so as to protect the confidentiality of its
investigation, no notice to the prisoner shall be required until an
accusatory pleading is filed with the court, or the authority
notifies the warden, in writing, that it will not prosecute or it
authorizes the notification of the prisoner. The notice exceptions
provided for in this paragraph shall only apply if the criminal
authority requests of the warden, in writing, and within the 15 days
provided in subparagraph (A) of paragraph (1) of subdivision (c),
that the prisoner not be notified. Any period of delay of notice to
the prisoner shall not exceed 30 days beyond the 15 days referred to
in subdivision (c). In the event that no prosecution is undertaken,
the procedures in subdivision (c) shall apply, and the time periods
set forth in that subdivision shall commence to run from the date the
warden is notified in writing of the decision not to prosecute. In
the event the authority either cancels its requests that the prisoner
not be notified before it makes a decision on prosecution or files
an accusatory pleading, the provisions of this paragraph shall apply
as if no request had been received, beginning from the date of the
cancellation or filing.
(4) In the case where the prisoner is prosecuted by the district
attorney, the Department of Corrections and Rehabilitation shall not
deny time credit where the prisoner is found not guilty and may deny
credit if the prisoner is found guilty, in which case the procedures
in subdivision (c) shall not apply.
(g) If time credit denial proceedings or criminal prosecution
prohibit the release of a prisoner who would have otherwise been
released, and the prisoner is found not guilty of the alleged
misconduct, the amount of time spent incarcerated, in excess of what
the period of incarceration would have been absent the alleged
misbehavior, shall be deducted from the prisoner's parole period.
(h) Nothing in the amendments to this section made at the 1981-82
Regular Session of the Legislature shall affect the granting or
revocation of credits attributable to that portion of the prisoner's
sentence served prior to January 1, 1983.
SEC. 5. Section 2933.6 of the Penal
Code is amended to read:
2933.6. (a) Notwithstanding any other law, a person who is placed
in a Security Housing Unit, Psychiatric Services Unit, Behavioral
Management Unit, or an Administrative Segregation Unit for misconduct
described in subdivision (b) or upon validation as a prison gang
member or associate is ineligible to earn credits pursuant to Section
2933 or 2933.05 during the time he or she is in the Security Housing
Unit, Psychiatric Services Unit, Behavioral Management Unit, or the
Administrative Segregation Unit for that misconduct.
(b) This section applies to the following offenses:
(1) Murder, attempted murder, and solicitation of murder. For
purposes of this paragraph, solicitation of murder shall be proven by
the testimony of two witnesses, or of one witness and corroborating
circumstances.
(2) Manslaughter.
(3) Assault or battery causing serious bodily injury.
(4) Assault or battery on a peace officer or other nonprisoner
which results in physical injury.
(5) Assault with a deadly weapon or caustic substance.
(6) Rape, attempted rape, sodomy, attempted sodomy, oral
copulation, or attempted oral copulation accomplished against the
victim's will.
(7) Taking a hostage.
(8) Escape or attempted escape with force or violence.
(9) Escape from any departmental prison or institution other than
a camp or reentry facility.
(10) Possession or manufacture of a deadly weapon or explosive
device.
(11) Arson involving damage to a structure.
(12) Possession of flammable, explosive material with intent to
burn any structure or property.
(13) Solicitation of assault with a deadly weapon or assault by
means of force likely to produce great bodily injury, arson, or a
forcible sex act.
(14) Intentional destruction of state property in excess of four
hundred dollars ($400) during a riot or disturbance.
(c) This section does not apply if the administrative finding of
the misconduct is overturned or if the person is criminally
prosecuted for the misconduct and is found not guilty.
(d) This section does not apply during any period during which an
offender in the Security Housing Unit has remained free of
disciplinary action for six consecutive months.
SECTION 1. It is the intent of the Legislature
to enact legislation to address or modify the use of segregated
housing units in the state prison system.